United States v. Marvin Outing

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4466
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARVIN FITZGERALD OUTING,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
Chief District Judge. (3:06-cr-00102-FDW-1)
Submitted: April 26, 2016 Decided: May 5, 2016
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Samuel B. Winthrop, WINTHROP & WINTRHOP, Statesville, North
Carolina, for Appellant. Jill Westmoreland Rose, United States
Attorney, Sanjeev Bhasker, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marvin Fitzgerald Outing pleaded guilty to possession of a
firearm by a felon, in violation of 18 U.S.C. § 922(g)(1)
(2012). The district court sentenced Outing to 118 months of
imprisonment, followed by 3 years of supervised release.
Following Outing’s release from incarceration, he was charged in
state court with assault on a female and communicating threats,
for two separate incidents. The district court revoked Outing’s
supervised release and sentenced Outing to 24 months of
imprisonment, and he now appeals. Finding no error, we affirm.
On appeal, Outing first argues that the district court
abused its discretion in admitting the hearsay statements of the
victim where the victim did not testify at the revocation
hearing. “We review a district court’s evidentiary ruling in a
revocation hearing for abuse of discretion.” United States v.
Ferguson, 752 F.3d 613, 616 (4th Cir. 2014). Pursuant to Fed.
R. Crim. P. 32.1(b)(2)(C), a defendant in a revocation
proceeding is entitled to an opportunity to question adverse
witnesses unless the court determines that the interest of
justice does not require the witness to appear. Id. “Rule
32.1(b)(1)(C) specifically requires that, prior to admitting
hearsay evidence in a revocation hearing, the district court
must balance the releasee’s interest in confronting an adverse
witness against any proffered good cause for denying such
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confrontation.” United States v. Doswell, 670 F.3d 526, 530
(4th Cir. 2012). While reliability is no longer the test for
admissibility, it remains “a critical factor in the balancing
test under Rule 32.1.” Id. at 531. “If hearsay evidence is
reliable and the Government has offered a satisfactory
explanation for not producing the adverse witness, the hearsay
evidence will likely be admissible under Rule 32.1.” Id. We
have thoroughly reviewed the record and conclude that the
district court did not abuse its discretion in admitting the
victim’s statements.
Outing also argues that the sentence is plainly
unreasonable. We review a sentence imposed as a result of a
supervised release violation to determine whether the sentence
is plainly unreasonable. United States v. Crudup, 461 F.3d 433,
437 (4th Cir. 2006). The first step in this analysis is a
determination of whether the sentence is unreasonable; in making
this determination, we follow the procedural and substantive
considerations employed in reviewing original sentences. Id. at
438. Although a district court must consider the policy
statements in Chapter Seven of the Sentencing Guidelines along
with the statutory factors, “the court ultimately has broad
discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum.” Crudup, 461 F.3d at
439 (internal quotation marks omitted).
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If a sentence imposed after a revocation is not
unreasonable, we will not proceed to the second prong of the
analysis — whether the sentence is plainly unreasonable. Id. at
438-39. We have reviewed the record and conclude that Outing
has failed to demonstrate that the sentence is procedurally or
substantively unreasonable. It follows, therefore, that the
sentence is not plainly unreasonable.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid in the decisional process.
AFFIRMED
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