United States v. George Steele ( 2019 )

Case: 19-60288 Document: 00515181978 Page: 1 Date Filed: 10/31/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-60288 FILED
Summary Calendar October 31, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
GEORGE MAURICE STEELE,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CR-120-1
Before BARKSDALE, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
In challenging the revocation of his term of supervised release and the
sentence imposed following that revocation, George Maurice Steele asserts:
the district court committed reversible error by permitting certain hearsay
statements at his revocation hearing; and his revocation sentence is
unreasonable because the court imposed consecutive terms of imprisonment
for each of the four underlying counts of conviction.
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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No. 19-60288
Steele commenced a term of supervised release in February 2016. In
December 2018, his probation officer filed a petition for an arrest warrant,
alleging Steele violated two mandatory conditions of his supervised-release
term: being arrested for domestic-aggravated assault and shooting into an
occupied dwelling; and being in possession of a firearm prior to this arrest.
During Steele’s revocation hearing, the court heard testimony from two
residents of the occupied dwelling into which it was alleged Steele fired. Both
residents testified to seeing him in possession of a firearm; they also testified
their neighbor (the victim’s young child) stated his mother had been shot by
Steele.
Steele contends the court erred by overruling his objection and allowing
the residents’ testimony regarding the young child’s statement. He claims this
violated his right to confront the witness.
“A district court may revoke a defendant’s supervised release if it finds
by a preponderance of the evidence that a condition of release has been
violated.” United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995) (citing
18 U.S.C. § 3583(e)(3)). Although a decision to revoke supervised release is
reviewed for abuse of discretion, McCormick, 54 F.3d at 219 (citation omitted),
whether the court violated the constitutional right to confrontation in a
revocation proceeding is reviewed de novo, subject to harmless-error analysis.
United States v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010) (citation omitted).
Had revocation been based solely on the residents’ testimony regarding
their observations of Steele in possession of a firearm, the court would not have
abused its discretion in finding, by a preponderance of the evidence, that Steele
possessed a firearm as provided in the second allegation of the revocation
petition. This finding required the mandatory revocation of Steele’s term of
supervised release, pursuant to 18 U.S.C. § 3583(g)(2). Therefore, any error in
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No. 19-60288
the admission of separate hearsay evidence was harmless. See, e.g., United
States v. Kindred, 918 F.2d 485, 487–88 (5th Cir. 1990) (holding any error in
revoking supervised release based on improper grounds was harmless because
§ 3583(g) mandated revocation).
For the challenge to consecutive, rather than concurrent, sentences
being imposed for each underlying count of conviction, sentences imposed upon
revocation of supervised release are reviewed under 18 U.S.C. § 3742(a)(4)’s
“plainly unreasonable” standard, which is more deferential than the
reasonableness standard applicable to sentences imposed upon conviction.
United States v. Warren, 720 F.3d 321, 326, 329 (5th Cir. 2013) (citations
omitted). Pursuant to this standard, we “first ensure that the district court
committed no significant procedural error”. United States v. Kippers, 685 F.3d
491, 497 (5th Cir. 2012) (internal quotation marks and citation omitted). Next,
we consider the “substantive reasonableness of the sentence imposed”. Id.
(citation omitted). A presumption of reasonableness applies to within-
Guidelines revocation sentences. United States v. Lopez-Velasquez, 526 F.3d
804, 809 (5th Cir. 2008). If we conclude the revocation sentence is
unreasonable, we may reverse only if “the error was obvious under existing
law”. United States v. Miller, 634 F.3d 841, 843 (5th Cir. 2011) (citation
omitted).
Conceding the district court properly calculated the revocation
sentencing range for each of the four underlying counts of conviction and
imposed a within-Guidelines sentence, Steele acknowledges the presumptive
reasonableness of the sentence. In imposing the sentence, the court explained
it addressed the need “to afford adequate deterrence to criminal conduct while
on supervised release and to protect the public from further crimes committed
by [Steele]”. See 18 U.S.C. § 3553(a)(2)(B), (C).
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As stated in his brief: “One reason for [challenging his sentence’s length]
on appeal is to preserve the issue in case there is a change of law before the
appeal is final”. Other than this reason, Steele claims only that “[i]mposing a
revocation sentence that is sixty percent of the very lengthy 180-month
sentence served on the underlying conviction is unreasonable”. Steele has
shown neither procedural error or substantive unreasonableness, let alone an
obvious error in the application of existing law.
AFFIRMED.
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