United States v. Dennis Morris ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4720
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DENNIS MORRIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:09-cr-00485-WMN-2)
Submitted: February 22, 2013 Decided: March 5, 2013
Before FLOYD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
William L. Welch, III, Baltimore, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, A. David Copperthite,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis Morris was convicted of Hobbs Act robbery in
violation of 18 U.S.C. § 1951 and was sentenced to twenty-four
months’ imprisonment, to be followed by a three year term of
supervised release. During this period, Morris failed to submit
written reports, did not notify his probation officer of his
whereabouts for a five month period, tested positive for
marijuana use, and posted on his Facebook page a picture of
himself holding what appeared to be a firearm. The district
court revoked Morris’ supervised release and sentenced him to
the statutory maximum of twenty-four months’ imprisonment. On
appeal, Morris’ sole contention is that the district court
abused its discretion by admitting hearsay evidence to prove
that the object in the Facebook picture was a firearm and not a
model, which resulted in a higher policy statement sentencing
range. We affirm.
We review a district court’s ruling to admit hearsay
evidence during a supervised release revocation hearing for
abuse of discretion. United States v. Medford, 661 F.3d 746,
751 (4th Cir. 2011), cert. denied, 132 S. Ct. 1729 (2012).
“Supervised release revocation hearings are informal proceedings
in which the rules of evidence, including those pertaining to
hearsay, need not be strictly applied.” United States v.
Doswell, 670 F.3d 526, 530 (4th Cir. 2012). However, due
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process affords a releasee a limited right “to confront and
cross-examine adverse witnesses” at a revocation hearing “unless
the hearing officer specifically finds good cause for not
allowing confrontation.” Morrissey v. Brewer, 408 U.S. 471, 489
(1972). Prior to admitting hearsay evidence in a revocation
hearing, “the district court must balance the releasee’s
interest in confronting an adverse witness against any proffered
good cause for denying such confrontation.” Doswell, 670 F.3d
at 530. Further, the due process guarantee is embodied in the
procedural rule that a releasee is “entitled to . . . question
any adverse witness unless the court determines that the
interest of justice does not require the witness to appear.”
Fed. R. Crim. P. 32.1(b)(2)(C). However, evidentiary rulings
are subject to harmless error review, such that any error is
harmless where we may say “with fair assurance, after pondering
all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the
error.” United States v. Johnson, 617 F.3d 286, 292 (4th Cir.
2010) (internal quotation marks omitted).
Regardless of whether the hearsay evidence was
properly admitted, we hold that any alleged error was harmless.
Morris does not contend that the district court lacked
sufficient grounds to revoke his supervised release, or that he
should not have served a term of imprisonment, or even that his
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sentence was unreasonable. Rather, Morris argues that the
district court improperly assessed a Grade A rather than a Grade
C violation against him because it relied on hearsay evidence to
show that Morris was in possession of a firearm. See U.S.
Sentencing Guidelines Manual (“USSG”) § 7B1.1(a) (2011). The
district court, however, explicitly stated that it would impose
the same sentence against Morris even if the firearm was a
model, based on what it perceived to be Morris’ comprehensive
disregard for the supervised release process. We accordingly
conclude that any evidentiary error was harmless.
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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