United States v. Chi Giang Ho ( 2015 )

Case: 14-10657 Document: 00512981852 Page: 1 Date Filed: 03/25/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10657
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 25, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
CHI GIANG HO,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:14-CR-50-1
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Chi Giang Ho, federal prisoner # 82698-179, challenges his 18-month
sentence for the revocation of his supervised release. Ho argues that the
district court erred by admitting the video identification made by the victim.
He argues that the admission of this evidence violated his due process right to
confront the witnesses against him as stated in Morrissey v. Brewer, 408 U.S.
471, 480 (1972). A supervisee has a due process right to “a fair and meaningful
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-10657 Document: 00512981852 Page: 2 Date Filed: 03/25/2015
No. 14-10657
opportunity to refute and challenge adverse evidence to assure that the court’s
relevant findings are based on verified facts.” United States v. Grandlund,
71 F.3d 507, 509-10 (5th Cir. 1995), opinion clarified, 77 F.3d 811 (5th Cir.
1996). This right allows confrontation of witnesses pertaining to the revocation
decision and does not extend to those witnesses pertaining to the revocation
sentence. Morrissey, 408 U.S. at 484; United States v. Beydoun, 469 F.3d 102,
108 (5th Cir. 2006).
Ho asserts that this evidence was the only evidence to support a finding
that he committed a Grade A violation of his release and that the evidence
tainted both the decision to revoke and his sentence. Ho does not dispute that
he admitted all of the revocation allegations except the assault. Because Ho
admittedly possessed cocaine while under supervision, the district court had
ample basis to conclude that he committed a Grade B violation. See United
States v. Bishop, 228 F. App’x 464, 465 (5th Cir. 2007) (finding that possession
of any amount of cocaine was punishable as a felony under Texas law and
therefore constituted a Grade B violation). “Upon a finding of a Grade A or B
violation, the court shall revoke probation or supervised release.” U.S.S.G.
§ 7B1.3(a)(1). As the admitted Grade B violation required that Ho’s release be
revoked, his assertion that the evidence related to his Grade A violation
affected the decision to revoke is spurious. Ho’s remaining argument is that
the challenged evidence tainted his sentence. As this argument pertains to his
sentence only, the confrontation arguments he makes based on Morrissey do
not apply.
AFFIRMED.
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