United States v. Crawford , 288 F. App'x 903 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5141
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD DALTON CRAWFORD, a/k/a Rich,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:94-cr-00126-MR-4)
Submitted: July 2, 2008 Decided: August 18, 2008
Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre, III, Charlotte, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Adam Morris,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Richard Dalton Crawford appeals the district court’s
judgment revoking his supervised release and sentencing him to
eighteen months’ imprisonment followed by a three-year term of
supervised release. On appeal, Crawford challenges the revocation,
maintaining the district court violated his rights in admitting
certain exhibits through the probation officer at the revocation of
supervised release hearing. We affirm.
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. 2008). 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).
Crawford, relying on Crawford v. Washington, 541 U.S. 36(2004), asserts that his constitutional rights under the Sixth
Amendment Confrontation Clause and under the Fifth Amendment were
violated at his supervised release hearing. Because Crawford
preserved this issue by objecting below, this court’s review is de
novo. United States v. Mackins, 315 F.3d 399, 405 (4th Cir. 2003).
When a defendant preserves a constitutional error, we “must reverse
-2-
unless [it] find[s] this constitutional error harmless beyond a
reasonable doubt, with the Government bearing the burden of proving
harmlessness.” Id. (citations omitted); see United States v.
White, 405 F.3d 208, 223 (4th Cir.) (discussing difference in
burden of proving that error affected substantial rights under
harmless error standard in Fed. R. Crim. P. 52(a), and plain error
standard in Fed. R. Crim. P. 52(b)), cert. denied, 126 S. Ct. 668(2005).
We find no constitutional error under Crawford. In
Crawford, 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.
541 U.S. at 68. Crawford asserts that, under this ruling, he was
entitled to confront the witnesses against him at the supervised
release hearing. He contends that the rule of Crawford applies to
supervised release revocation hearings because, unlike parole and
probation revocation, a supervised release revocation hearing 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
-3-
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, 627-28 (6th Cir.
2005); United States v. Aspinall, 389 F.3d 332, 342-43 (2d Cir.
2004), abrogated on other grounds as recognized in United States v.
Fleming, 397 F.3d 95, 99 n.5 (2d Cir. 2005); United States v.
Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004); cf. Ash v. Reilly,
431 F.3d 826, 829-30 (D.C. Cir. 2005) (holding Crawford does not
apply to parole revocations).
Next, Crawford argues the court’s admission of hearsay
evidence, the exhibits admitted through the probation officer,
violated his rights to due process. As a threshold matter, to the
extent this claim does not rely on Crawford, we find that
Crawford’s objections to the evidence below on the ground that its
admission violated his right to confrontation sufficiently
preserved his due process argument on appeal. Accordingly, the
district court’s decision to admit hearsay evidence is reviewed for
abuse of discretion. See United States v. Mohr, 318 F.3d 613, 618
(4th Cir. 2003).
Supervised release revocation hearings are informal
proceedings in which the rules of evidence need not be strictly
observed. Fed. R. Evid. 1101(d)(3). While the Federal Rules of
Evidence regarding hearsay do not apply at a supervised release
-4-
revocation hearing, a defendant is still afforded some
confrontation rights in a revocation proceeding. In Morrissey v.
Brewer, 408 U.S. 471, 484 (1972), the Supreme Court held that a
defendant must receive a fair and meaningful opportunity to refute
or impeach evidence against him “to assure that the findings of a
parole violation will be based on verified facts.” Among the
defendant’s rights in a parole-revocation context is “the right to
confront and cross-examine adverse witnesses (unless the hearing
officer specifically finds good cause for not allowing
confrontation).” Id. at 489; see also Gagnon v. Scarpelli, 411
U.S. 778, 782 (1973) (extending Morrissey rights to probationers).
The due process requirements recognized in Morrissey are
incorporated in Fed. R. Crim. P. 32.1(a)(2), which is applicable to
supervised release revocation proceedings.
We have held that a showing that the hearsay evidence is
“demonstrably reliable” is sufficient to satisfy the requirements
of Rule 32.1. United States v. McCallum, 677 F.2d 1024, 1026 (4th
Cir. 1982). We have reviewed the parties’ briefs and the materials
submitted in the joint appendix, particularly the transcript of the
hearing and the documents introduced at trial through the probation
officer. We conclude that the hearsay evidence was sufficiently
reliable and therefore the court did not abuse its discretion in
admitting the evidence.
-5-
This court will affirm a sentence imposed after
revocation of supervised release if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006), cert.
denied, 127 S. Ct. 1813 (2007). Crawford does not challenge the
sentence imposed by the district court upon revocation of
supervised release and, therefore, he has waived that issue.
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
-6-