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United States v. King ( 2023 )


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  • Case: 22-60633        Document: 00516782209             Page: 1      Date Filed: 06/12/2023
United States Court of Appeals
for the Fifth Circuit
____________                              United States Court of Appeals
Fifth Circuit
No. 22-60633                                    FILED
Summary Calendar                              June 12, 2023
____________                                 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Dvonte Amir King,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:18-CR-239-1
______________________________
Before Smith, Southwick, and Douglas, Circuit Judges.
Per Curiam: *
Dvonte Amir King has appealed the district court’s judgment
revoking his supervised release. After an evidentiary hearing, the district
court found that King had violated conditions of his supervised release by
committing law violations—domestic violence/creating fear and being a
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-60633      Document: 00516782209             Page: 2   Date Filed: 06/12/2023
No. 22-60633
felon in possession of a firearm—and by failing to pay the special assessment
and fine imposed in the court’s original judgment.
“Defendants in supervised release revocation proceedings have a
qualified right to confront witnesses.” United States v. Jimison,
    825 F.3d 260
    ,
261 (5th Cir. 2016); see also Morrissey v. Brewer,
    408 U.S. 471
    , 489 (1972).
King contends that the district court erred by denying his right to confront
witnesses with respect to their out-of-court statements.
Ordinarily, this court’s review of this question is de novo, subject to
harmless error analysis. See Jimison,
    825 F.3d at 262
    . To the extent that
King failed to preserve error, our review is for plain error. See Holguin-
Hernandez v. United States,
    140 S. Ct. 762
    , 764 (2020). Under the plain error
standard, King must show that the district court committed a clear and
obvious error that affected his substantial rights, that is, that it affected the
outcome of the proceedings. See United States v. McDowell,
    973 F.3d 362
    ,
365-66 (5th Cir. 2020). If such a showing is made, we have the discretion to
reverse such errors if they seriously affect the fairness, integrity, or public
reputation of judicial proceedings. See
    id.
    Three categories of evidence are at issue: (1) out-of-court statements
made during 911 emergency calls; (2) out-of-court statements made by the
domestic-violence victim to police officers during their investigation; and
(3) out-of-court statements of the victim’s children that were recorded in a
police officer’s incident report.
“[T]here is no due process right to cross-examine nontestimonial
declarants in revocation proceedings.”             McDowell, 973 F.3d at 366.
Ordinarily, “[s]tatements made in response to an ongoing emergency on a
911 call are not testimonial.” Id. “Therefore, they do not trigger the
requirements of the Confrontation Clause, let alone due process.” Id. at 367.
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Case: 22-60633      Document: 00516782209          Page: 3   Date Filed: 06/12/2023
No. 22-60633
In this case, because the domestic-violence victim appeared as a
witness at the revocation hearing and was subject to cross examination, the
admission of her out-of-court statements did not violate King’s right to due
process. See Morrissey,
    408 U.S. at 488-89
    .
The district court determined that the safety and well-being of the
children provided good cause for pretermitting confrontation. See Jimison,
    825 F.3d at 263
    ; see also United States v. Alvear,
    959 F.3d 185
    , 190 (5th Cir.
2020). Any error in admitting the out-of-court statements of the children
was harmless because there was ample other evidence supporting the district
court’s finding that King had violated a condition of his supervised release by
committing the law violations. See Jimison,
    825 F.3d at 262
    .
King contends that the district court erred in finding that he violated
conditions of his supervised release by failing to pay the special assessment
and fine imposed in the original criminal judgment. King asserts that his
failure to pay was not willful. See Bearden v. Georgia,
    461 U.S. 660
    , 672-73
(1983); see also United States v. Payan,
    992 F.2d 1387
    , 1396 (5th Cir. 1993).
We do not reach this contention because any such error was harmless in light
of the district court’s finding that King violated conditions of his supervised
release by committing law violations. See United States v. McCormick,
    54 F.3d 214
    , 219 n.3 (5th Cir. 1995). The judgment is AFFIRMED.
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