United States v. McSwine

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4842
TODD MCSWINE,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Samuel G. Wilson, Chief District Judge.
(CR-93-70136)
Submitted: June 12, 1997
Decided: June 24, 1997
Before WIDENER and WILLIAMS, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Edward H. Childress, Charlottesville, Virginia, for Appellant. Robert
P. Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assis-
tant United States Attorney, Charlottesville, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Todd McSwine appeals from his conviction for violation of the
conditions of his supervised release. McSwine originally was sen-
tenced in Virginia to thirty-months incarceration followed by thirty-
six months of supervised release for his wire fraud conviction. His
supervised release began in the Northern District of Illinois.
Shortly thereafter, McSwine's probation officer in the Northern
District of Illinois reported that McSwine submitted four urine
screens that tested positive for cocaine use. McSwine initially denied
illegal drug use, but ultimately admitted that he had used cocaine.
After McSwine's acknowledgment of drug use, McSwine's probation
officer placed him in an outpatient substance abuse treatment pro-
gram. According to the officer, McSwine missed his first meeting.
At McSwine's revocation hearing in Virginia, a probation officer
from the Western District of Virginia testified to McSwine's positive
urine screens based on his contacts with McSwine's probation officer
from the Northern District of Illinois. McSwine was sentenced to
eighteen months incarceration for violating the conditions of his
supervised release.
On appeal, McSwine claims that the evidence was insufficient to
support his conviction. The district court had only to find by a pre-
ponderance of the evidence that McSwine violated a condition of his
supervised release. 18 U.S.C. § 3583(e)(3) (1994). This court reviews
that determination for an abuse of discretion. See United States v.
Copley, 978 F.2d 829, 831 (4th Cir. 1992). Furthermore, because
supervised release revocation proceedings and probation revocation
proceedings have the same constitutional requirements, id., the Fed-
eral Rules of Evidence are inapplicable to supervised release revoca-
tion hearings, Fed. R. Evid. 1103(d)(3). Thus, the admission of
hearsay testimony at McSwine's revocation hearing was not a viola-
tion of the evidentiary rules. McSwine's positive urinalysis tests,
together with his admissions to his probation officer of cocaine use,
were sufficient to support the court's finding that McSwine was in
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possession of a controlled substance. United States v. Battle, 993 F.2d
49, 50 (4th Cir. 1993).
McSwine next alleges that his placement into a drug treatment pro-
gram by his probation officer in the Northern District of Illinois con-
stituted a sanction. He contends that the matter was then closed and
only after he missed his treatment meeting was he in violation of his
supervised release conditions. Thus, he argues that the court was pre-
cluded from basing his revocation on his positive urine screens, a
Grade B violation, and the court could only base his revocation on his
failure to comply with the treatment program, a Grade C violation,
which would lower his guideline range. We find that the probation
officer's attempt to place McSwine in a treatment program was not
intended as a sanction but rather was an effort to make McSwine
comply with the conditions of his supervision. Moreover, the sentenc-
ing guidelines state that "[w]hen there is more than one violation of
the conditions of supervision . . . the grade of the violation is deter-
mined by the violation having the most serious grade." United States
Sentencing Commission, Guidelines Manual,§7B1.1(b) (Nov. 1995).
Thus, the court did not err by basing McSwine's revocation on his
positive urine screens.
Lastly, McSwine claims that the court abused its discretion by sen-
tencing McSwine at the top of his guideline range. However, a claim
that a court erred by imposing a sentence at the high or low end of
a correctly calculated guideline range is generally not reviewable. See
United States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994). Because
McSwine has not alleged that his sentence was based on an unconsti-
tutional classification, see United States v. Holmes, 60 F.3d 1134,
1137 (4th Cir. 1995), his sentence is not reviewable.
Accordingly, we affirm McSwine's conviction and sentence for
violating the conditions of his supervised release. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
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