United States v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4165
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIAM HORACE JOHNSON, JR.,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:96-cr-00178-BO-1)
Argued: March 26, 2010 Decided: April 20, 2010
Before MOTZ, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: George E. B. Holding, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Horace Johnson, Jr., appeals from the district
court’s judgment revoking his term of supervised release and
sentencing him to 22 months in prison. Johnson presents two
primary appellate contentions: first, he challenges the court’s
revocation of supervised release, contending that it erred in
admitting unreliable hearsay testimony at the revocation
hearing; and, second, he maintains that the court gave an
inadequate explanation for the revocation sentence, rendering it
plainly unreasonable. As explained below, we affirm.
I.
In August 1997, Johnson was convicted in the Eastern
District of North Carolina of extortion by interstate
communication, in contravention of 18 U.S.C. § 875(b), and was
subsequently sentenced to 151 months of imprisonment, plus 36
months of supervised release. In addition to the standard
conditions of supervised release — such as working regularly at
a lawful occupation and refraining from controlled substances —
the court imposed special conditions of supervised release,
including mental health and drug treatment and participation in
a residential reentry program.
In November 2007, Johnson was released from custody and
began serving on supervised release. To abide by the conditions
2
thereof, Johnson resided at the Bannum Place of Wilmington
(“Bannum Place”), a residential reentry center in Wilmington,
North Carolina. He also secured employment with a Wilmington
restaurant and participated in a mental health treatment program
at Wilmington’s Trinity Wellness Center.
In June 2008, Johnson’s probation officer, Kevin Connolley,
moved to revoke supervised release, asserting that Johnson had
violated several of his release conditions. More specifically,
Connolley alleged that Johnson had missed multiple appointments
with his therapist; had been fired from his job; and had used
crack cocaine on several occasions. On June 18, 2008, at the
conclusion of a revocation hearing, the district court found
that Johnson had committed each of the alleged violations and
revoked supervised release. The court imposed a 40-day
revocation sentence, to be followed by 24 months of supervised
release under the conditions it had initially imposed.
On July 11, 2008, Johnson was released from custody and
began serving his second term of supervised release. He
returned to Bannum Place, resumed his therapy program, and
attempted to obtain lawful employment. Less than two months
later, however, Probation Officer Connolley again moved to
revoke Johnson’s supervised release, alleging that Johnson had
violated his release conditions by (1) failing to abide by the
rules and conditions of Bannum Place (the “rules violation”);
3
(2) failing to maintain lawful employment (the “employment
violation”); and (3) failing to participate in a mental health
treatment program (the “therapy violation”). With respect to
the rules violation, Connolley asserted that Johnson was
discharged from Bannum Place in August 2008 after he refused to
follow a staff member’s instructions. As to the employment
violation, Connolley alleged that he instructed Johnson — who
had been without work for nearly three months — to apply for
employment at several fast-food restaurants in Wilmington, but
that Johnson failed to do so because he considered such work
“demeaning” and refused “to work around black people.” J.A. 36. 1
Finally, Connolley maintained that Johnson committed the therapy
violation by missing a scheduled session with his Trinity
Wellness Center therapist on August 20, 2008. Connolley
included with the revocation motion a Supervised Release
Violation Worksheet, by which he applied Chapter 7 of the
Sentencing Guidelines to calculate Johnson’s advisory Guidelines
range as 8 to 14 months. 2
1
Citations herein to “J.A. ___” refer to the Joint Appendix
filed by the parties in this appeal.
2
Chapter 7 of the Guidelines — entitled “Violations of
Probation and Supervised Release” — includes, inter alia, a
“Revocation Table” suggesting an appropriate term of
imprisonment based on a defendant’s criminal history category
and the grade of his supervised release violation. See USSG
§ 7B1.4(a). Each of Johnson’s three alleged violations is a
(Continued)
4
On February 11, 2009, the district court conducted a
hearing on the second motion for revocation of supervised
release. After Johnson denied violating any conditions of
supervised release, the prosecutor presented Connolley’s
testimony to establish that Johnson had committed the three
violations. Asserting that Connolley’s testimony consisted of
inadmissible hearsay, Johnson objected thereto. Johnson
maintained that Connolley lacked first-hand knowledge of the
alleged violative conduct and had only learned of Johnson’s
behavior by meeting with Johnson’s therapist and the Bannum
Place staff. Johnson thus protested that admission of
Connolley’s testimony infringed on his right to confront and
cross-examine adverse witnesses. In response, the prosecution
erroneously asserted that revocation proceedings “are
appropriately treated . . . under the relaxed rules of evidence
which permit the presentation of hearsay and summary evidence.”
J.A. 49–50. The prosecution thus maintained that Connolley
could properly testify to Johnson’s conduct in all instances.
“Grade C” violation, the lowest of the three grades, see id.
§ 7B1.1(a)(3), resulting in a Guidelines range of 8 to 14 months
when combined with his criminal history category of VI, see id.
§ 7B1.4(a). Notwithstanding this advisory range, Johnson was
also subject to a two-year statutory maximum sentence. See 18
U.S.C. § 3583(e)(3).
5
Without explanation, the district court overruled Johnson’s
hearsay objection, and Officer Connolley proceeded to testify in
support of the three violations. Relying on reports from the
Bannum Place staff, Connolley testified that Johnson committed
the rules violation when he refused “to allow staff to review a
receipt from a purchase he had made.” J.A. 50. Connolley
further testified, based on the therapist’s account of Johnson’s
conduct, that Johnson missed a scheduled session at Trinity
Wellness Center, thereby committing the therapy violation.
Notably, however, Connolley had first-hand knowledge of the
employment violation, testifying that he personally instructed
Johnson to apply for employment at specific restaurants in the
Wilmington area, and that Johnson had refused. Based solely on
Connolley’s testimony — the prosecution produced no other
evidence, and Johnson neither testified nor presented any other
evidence — the court found that Johnson had committed each of
the three violations and revoked his term of supervised release.
The district court thereafter heard argument from the
parties regarding sentencing. In that regard, the prosecution
maintained that Johnson was “psychologically distorted” and had
refused medication and proper treatment, rendering him “as
dangerous . . . as he was when he was first incarcerated.” J.A.
67. The Government thus requested a statutory maximum sentence
of 24 months, notwithstanding Johnson’s advisory Guidelines
6
range of 8 to 14 months. In response, Johnson’s counsel
stressed the “technical” nature of the violations and asked the
court instead to “give [Johnson] credit for time served and
terminate supervised release.” Id. at 72. Johnson himself then
spoke, emphasizing his history of mental illness and his various
health problems. He asserted that the Bureau of Prisons (the
“BOP”) had neglected his mental health needs when he served his
initial sentence and maintained that he likely would have
received proper treatment had he been imprisoned at the Butner
Federal Correctional Complex (“Butner”) in Butner, North
Carolina. Johnson also explained that he suffered from glaucoma
that had not been properly treated. He concluded by informing
the court that he was “struggling” and “need[ed] some relief.”
Id. at 75.
Following Johnson’s statement, the district court explained
that it would try to “do something positive” for him. J.A. 77.
The court referenced Johnson’s health problems and, in response
to his claim that the “BOP has absolutely done me no good,”
explained that it would “try to change that and put you in a
situation where you get somebody to pay attention to you and you
get some care.” Id. The court then imposed a 22-month
revocation sentence — which equaled the balance of Johnson’s
second term of supervised release — and recommended that he
serve his prison term at Butner. The court also recommended
7
that Johnson “receive mental health evaluation, mental health
treatment, and counseling and medical treatment for his current
medical problems.” Id. at 78–79.
Johnson timely noticed this appeal, and we possess
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
II.
We review for abuse of discretion a district court’s
decision to revoke supervised release. See United States v.
Pregent, 190 F.3d 279, 282 (4th Cir. 1999). In conducting such
a review, we examine the court’s findings of fact — including a
finding that the defendant violated a condition of supervised
release — for clear error. See United States v. Oquendo-Rivera,
586 F.3d 63, 67 (1st Cir. 2009). We review for abuse of
discretion a district court’s evidentiary rulings and subject
them to harmless error review. See United States v. Johnson,
587 F.3d 625, 637 (4th Cir. 2009).
We review a sentence imposed after the revocation of
supervised release to determine if it is “plainly unreasonable.”
See United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006).
“In determining whether a sentence is plainly unreasonable, we
first decide whether the sentence is unreasonable,” applying the
same procedural and substantive considerations that we employ in
8
reviewing an initial sentence. Id. at 438. If the revocation
sentence is either procedurally or substantively unreasonable,
“we must then decide whether the sentence is plainly
unreasonable, relying on the definition of ‘plain’ that we use
in our ‘plain’ error analysis.” Id. at 439.
III.
A.
In this appeal, Johnson first challenges the district
court’s decision to revoke his term of supervised release,
contending that the court abused its discretion by admitting and
considering unreliable hearsay evidence — namely, Officer
Connolley’s testimony. Johnson maintains that Connolley’s
testimony was predicated on the out-of-court statements of
various third parties and thus contravened Johnson’s right to
confront adverse witnesses.
Revocation hearings are deemed to be informal proceedings,
in which the rules of evidence need not be strictly observed.
See Fed. R. Evid. 1101(d)(3). Nevertheless, because such
proceedings may result in a significant loss of liberty, the
Supreme Court has determined that they must satisfy minimum
requirements of due process, including a limited right “to
confront and cross-examine adverse witnesses.” Morrissey v.
Brewer, 408 U.S. 471, 489 (1972). Federal Rule of Criminal
9
Procedure 32.1, which governs revocation proceedings,
incorporates this limited right of confrontation, providing in
pertinent part that a supervised releasee must be accorded the
opportunity at a revocation hearing “to question any adverse
witness, unless the judge determines that the interest of
justice does not require the witness to appear.” Fed. R. Crim.
P. 32.1(b)(1)(B)(iii). Pursuant to Rule 32.1, “the court should
apply a balancing test at the hearing itself when considering
the releasee’s asserted right to cross-examine witnesses” and
should “balance the person’s interest in the constitutionally
guaranteed right to confrontation against the government’s good
cause for denying it.” Fed. R. Crim. P. 32.1 advisory
committee’s note (2002). Notably, we have recognized that,
pursuant to Rule 32.1, a court may only consider hearsay
evidence in a revocation proceeding if it is “demonstrably
reliable.” United States v. McCallum, 677 F.2d 1024, 1026 (4th
Cir. 1982).
Here, there is no indication that the district court
conducted a Rule 32.1 analysis. In authorizing the prosecution
to present its case through the testimony of Officer Connolley —
predicated on the erroneous advice of the prosecutor — the court
did not assess whether “the interest of justice” warranted
admission of hearsay evidence. See Fed. R. Crim. P.
32.1(b)(1)(B)(iii). Nor did the court determine that the out-
10
of-court statements underlying Connolley’s testimony were
“demonstrably reliable.” See McCallum, 677 F.2d at 1026.
Accordingly, the court necessarily abused its discretion when it
admitted Connolley’s hearsay testimony. See United States v.
Delfino, 510 F.3d 468, 470 (4th Cir. 2007) (“A district court
abuses its discretion when it . . . fails to consider judicially
recognized factors constraining its exercise of discretion
. . . .”).
Nevertheless, the evidentiary error was necessarily
harmless, in the circumstances of this case, for the prosecution
presented sufficient non-hearsay evidence to support the
employment violation. More specifically, Officer Connolley
testified — based on his first-hand knowledge — that Johnson
(1) had been unemployed for nearly three months prior to the
filing of the revocation motion; and (2) refused to apply for
jobs at local restaurants, despite being instructed by the
probation office to do so. This evidence sufficed to prove that
Johnson had failed to work regularly at a lawful occupation, as
his conditions of release required. See 18 U.S.C. § 3583(e)(3)
(authorizing revocation of supervised release if district court
finds by preponderance that violation occurred). Accordingly,
although the court erred in failing to make the Rule 32.1
assessment of whether the hearsay evidence was demonstrably
reliable and whether the interest of justice necessitated its
11
admission, the court did not clearly err in finding that Johnson
had violated a condition of supervised release; thus, the court
did not abuse its discretion in revoking Johnson’s supervised
release. See Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial
rights must be disregarded.”).
B.
Finally, Johnson challenges his revocation sentence as
plainly unreasonable. The district court imposed a 22-month
revocation sentence, less than the 24-month statutory maximum
but more than the 8- to 14-month range advised by the
Guidelines. Johnson maintains that the court procedurally erred
by offering an insufficient explanation for the above-Guidelines
sentence. In assessing whether Johnson’s revocation sentence is
plainly unreasonable, we must first determine whether the
sentence is unreasonable, taking into account the sentencing
court’s broad discretion in imposing such a sentence. See
United States v. Thompson, 595 F.3d 544, 546–47 (4th Cir. 2010).
Indeed, our inquiry into whether a revocation sentence is
unreasonable “takes a more deferential appellate posture
concerning issues of fact and the exercise of discretion than
reasonableness review for guidelines sentences.” United States
v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal
quotation marks omitted). Although a sentencing court must
12
provide a sufficient explanation of its sentence to enable an
effective reasonableness review, “this statement need not be as
specific as has been required for departing from a traditional
guidelines range.” Id. at 657 (internal quotation marks
omitted). So long as the court presents some explanation for
the sentence, thereby “provid[ing] us an assurance that [it]
considered the § 3553(a) factors with regard to the particular
defendant,” we must defer to the sentencing decision. Id.; see
also Thompson, 595 F.3d at 547.
Here, the district court provided a sufficient explanation
of Johnson’s 22-month revocation sentence. The court
specifically referenced Johnson’s mental health problems and
observed that it would “try to do something positive” by placing
Johnson where he could “get some care.” J.A. 77. Indeed, after
Johnson complained that the BOP had neglected his mental health
during his initial term of imprisonment, the court recommended
that Johnson serve his revocation sentence at Butner, where he
could receive appropriate mental health evaluations, treatment,
and counseling. Moreover, the court referenced Johnson’s
physical health problems, recommending that he receive proper
treatment for glaucoma and other health issues.
The court thus properly predicated Johnson’s 22-month
revocation sentence on his need for medical treatment and care,
a consideration squarely authorized by § 3553(a). See 18 U.S.C.
13
§ 3553(a)(2)(D); see also id. § 3583(e) (requiring sentencing
court to consider aspects of § 3553(a) before imposing
revocation sentence). Johnson does not contend that the court
failed to consider other pertinent sentencing factors (or that
it considered impermissible factors). In these circumstances,
Johnson’s revocation sentence is not unreasonable and thus
cannot be plainly unreasonable. See Crudup, 461 F.3d at 440. 3
3
Johnson presents two additional sentencing contentions
that we can reject without prolonged discussion. First, he
maintains that the district court procedurally erred because it
failed to consider his advisory Guidelines range. Although a
sentencing court must consider the policy statements in Chapter
7 of the Guidelines when imposing a revocation sentence, see
Crudup, 461 F.3d at 439, the court “need not engage in
ritualistic incantation” in order to satisfy its burden, see
United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995). So
long as the advisory range was put before it, “[c]onsideration
is implicit in the court’s ultimate ruling.” Davis, 53 F.3d at
642. Because Officer Connolley’s motion for revocation
accurately calculated the advisory Guidelines range, the court
did not err in this regard.
Second, Johnson asserts that his above-Guidelines
revocation sentence is substantively unreasonable, given the
“technical” nature of his violations. The district court,
however, predicated its chosen sentence on Johnson’s need for
therapy and medical treatment, and a court may properly consider
a defendant’s rehabilitative needs in determining the length of
a revocation sentence. See Crudup, 461 F.3d at 440; see also 18
U.S.C. § 3553(a)(2)(D) (authorizing sentencing court to consider
whether sentence provides defendant with needed medical care).
Accordingly, the court did not substantively err when it imposed
a 22-month sentence designed to enable Johnson to receive proper
treatment.
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IV.
Pursuant to the foregoing, we reject Johnson’s appellate
contentions and affirm.
AFFIRMED
15