United States v. Walker , 263 F. App'x 316 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4744
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KAWONE KAREEM WALKER, a/k/a Fish,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:96-cr-00053-NKM)
Submitted: December 19, 2007 Decided: January 29, 2008
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Frederick T. Heblich,
Jr., Assistant Federal Public Defender, Christine Madeleine
Spurell, Research and Writing Attorney, Charlottesville, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Ray B.
Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kawone Kareem Walker appeals the district court’s order
revoking his supervised release. On appeal, Walker challenges the
district court’s revocation order, asserting that the failure to
provide witnesses to the alleged criminal acts on which the
revocation was based violated his Fifth and Sixth Amendment rights
and Fed. R. Crim. P. 32.1. We affirm.
In 1997, Walker pled guilty to conspiracy to distribute
cocaine base. He was sentenced to 121 months of imprisonment and
five years of supervised release. On January 31, 2007, he was
arrested by the New York City Police Department and charged with
criminal sale of a controlled substance and criminal possession of
a controlled substance, both Class B felonies, and criminal
possession of a controlled substance, a Class A misdemeanor, for
selling crack to an undercover police officer and dropping five
bags of crack during his flight from the scene.
When this arrest was brought to the attention of the
district court, the court ordered issuance of a warrant. At a
hearing, the supervised release violation report was entered into
evidence, and the probation officer testified. The probation
officer confirmed that he had advised the court that Walker was
arrested on charges of possession and distribution of crack
cocaine. Walker made no objection to the absence of any other
adverse witnesses. He testified and admitted that the New York
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charges were pending, but he denied that he had possessed any drugs
and asserted his innocence of the charges. Walker’s sister and his
girlfriend also testified in his behalf.
Based on this evidence, the district court found Walker’s
version of the arrest not credible. The district court found that
Walker committed a Grade A violation, revoked his supervised
release, and sentenced him to thirty months imprisonment, to be
followed by twenty-four months of supervised release.
This court reviews the district court’s revocation of
supervised release for abuse of discretion. United States v.
Pregent, 190 F.3d 279, 282 (4th Cir. 1999). The district court
need only find a violation of a condition of supervised release by
a preponderance of the evidence. 18 U.S.C.A. § 3583(e)(3) (West
2000 & Supp. 2007). We review for clear error factual
determinations underlying the conclusion that a violation occurred.
United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003);
United States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996).
Walker asserts that he was denied the right to confront
the witnesses against him, citing the Fifth and Sixth Amendments
and Fed. R. Crim. P. 32.1. Because Walker did not raise these
claims before the district court, we review them for plain error.
See United States v. Smith, 452 F.3d 323, 331 (4th Cir.) (citing
United States v. Olano, 507 U.S. 725, 732-36 (1993)), cert. denied,
127 S. Ct. 694 (2006).
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In Crawford v. Washington, 541 U.S. 36 (2004), the
Supreme Court held that the Sixth Amendment’s Confrontation Clause
does not permit the introduction of out-of-court testimonial
evidence unless the witness is unavailable and the defendant has
had a prior opportunity for cross-examination. Id. at 68. Walker
asserts that, under this ruling, he was entitled to be confronted
at the supervised release hearing with the witnesses against him.
He contends that the rule of Crawford applies to supervised release
revocation hearings because, unlike parole and probation
revocation, this is a new prosecution that ends in a new
punishment. But see Johnson v. United States, 529 U.S. 694, 700-01
(2000) (penalties imposed upon revocation of supervised release are
attributable to the original conviction, not a punishment for a new
offense).
The Crawford holding does not apply to supervised release
revocations because they are not “criminal prosecutions” under the
Sixth Amendment. See United States v. Kelley, 446 F.3d 688, 691-92
(7th Cir. 2006); United States v. Rondeau, 430 F.3d 44, 47-48 (1st
Cir. 2005); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.
2005); United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005);
United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004).
Further, Walker has not established that the district court
committed plain error under the Fifth Amendment Due Process Clause,
see Hall, 419 F.3d at 986, or under Fed. R. Crim. P. 32.1(b)(2)(C).
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Because Walker did not raise the issue below, he did not provide
the district court with an opportunity to assess his right to
question any adverse witness or to determine that “the interest of
justice does not require the witness to appear.” Rule
32.1(b)(2)(C).
Accordingly, we find that the district court did not
abuse its discretion in revoking Walker’s supervised release. We
affirm the district court’s revocation of supervised release and
the sentence imposed. 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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