United States v. Hawkins , 354 F. App'x 880 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 1, 2009
No. 09-60100
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RODNEY A. HAWKINS,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:04-CR-85-1
Before GARWOOD, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
Rodney A. Hawkins appeals the district court’s revocation of his
supervised release and imposition of a term of eight months in prison followed
by an additional two year term of supervised release. Hawkins argues that he
was denied due process because the district court admitted into evidence a
statement from a police report of which he was not given prior notice. Although
Hawkins was not due the full panoply of rights that apply to a criminal
prosecution, he was entitled to disclosure of the evidence to be presented against
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-60100
him at the final revocation hearing. See Morrissey v. Brewer, 408 U.S. 471, 489
(1972); see also F ED. R. C RIM. P. 32.1(b)(2)(B). However, because Hawkins did
not raise any objections in the district court to the admission of the statement,
or request any continuance, review of the admission is limited to plain error. See
Puckett v. United States,129 S. Ct. 1423, 1429 (2009). To show plain error, the
appellant must show a forfeited error that is clear or obvious and that affects his
substantial rights. Id. If the appellant makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. To show that
admission of the statement affected his substantial rights, Hawkins must show
that the admission “affected the outcome of the district court proceedings.” Id.
(internal quotation marks and citation omitted).
This court need not resolve whether the district court erred by admitting
the statement, because even if it did, Hawkins fails to show that his substantial
rights were affected. Apart from the statement in question, the Government
presented ample evidence that Hawkins failed, in violation of the terms of his
supervised release, to (1) report arrests to his probation officer, (2) hold gainful
employment during the relevant period, and (3) pay the required amount of
restitution.1 Although Hawkins testified in rebuttal that he had reported his
arrests and attained gainful employment,2 the district court indicated that it was
1
Specifically, Hawkins’ probation officer testified that Hawkins did not
report his arrests. Instead, the officer discovered Hawkins’ arrests through
record checks. Further, the officer testified that Hawkins was required to pay
$100/month in restitution. At the time of the hearing, Hawkins made only one
$40 payment. Hawkins claimed that he worked at a pet store. His probation
officer and another United States Probation Officer contacted the owner of the
particular pet store, but was told by the owner that Hawkins had never worked
there.
2
In response to the Government’s evidence, Hawkins cross-examined the
probation officer on the fact that his arrests had not yet resulted in convictions.
Hawkins established that it was possible (though not likely) for Hawkins to have
2
No. 09-60100
not persuaded by Hawkins’s contentions. At best, Hawkins has demonstrated
to this Court that the record reflects conflicting evidence. We, however, accord
“great deference” to the district court’s credibility determinations. United States
v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994). Given the Government’s other
evidence, Hawkins fails to show that the introduction of the statement at issue,
even if erroneous, affected the outcome of the revocation hearing. See
Puckett,129 S. Ct. at 1429. We likewise reject Hawkins’s argument the evidence
was not sufficient to warrant revocation; the district court did not abuse its
discretion. See United States v. Spraglin, 418 F.3d 479, 480 (5th Cir. 2005).
AFFIRMED.
left a voice mail about the arrest that the probation officer never received.
Hawkins further produced a signed statement by the pet shop owner that
Hawkins had worked for him in 2007 (but not 2008, the relevant time).
3