United States v. Ensley

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5436
VERLIN LESLIE ENSLEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Bryson City.
Lacy H. Thornburg, District Judge.
(CR-92-108-B)
Submitted: December 12, 1995
Decided: April 1, 1996
Before WIDENER, NIEMEYER, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Stephen P. Lindsay, LINDSAY & HENSLEY, Asheville, North Caro-
lina, for Appellant. Mark T. Calloway, United States Attorney,
Thomas R. Ascik, Assistant United States Attorney, Asheville, North
Carolina, for Appellant.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Verlin Leslie Ensley ("Ensley") appeals from the district court's
revocation of his supervised release. Because we find the objections
raised on appeal to be without merit, we affirm the order of the dis-
trict court.
Ensley pleaded guilty to one count of possession of a controlled
substance. The district court sentenced him to fifteen days of incarcer-
ation, followed by a one-year term of supervised release. One of the
conditions of Ensley's supervised release was that he not commit any
local, state, or federal crimes.
After serving his fifteen-day jail term, Ensley was released on July
7, 1993, and began one year of supervised release. On July 5, 1994,
Ensley's probation officer filed a petition to revoke Ensley's super-
vised release. The probation officer alleged that Ensley had violated
his release conditions because he had committed the offense of break-
ing and entering. The notice was based on pending charges that had
been filed against Ensley by state authorities.
At the revocation hearing, the Government called two witnesses:
Ensley's probation officer, Russell Hensley ("Hensley"), and Swain
County Deputy Sheriff Jackie Fortner ("Fortner"). Hensley testified
about the procedural background leading up to the hearing and Fort-
ner testified about the underlying offense.
Fortner testified that his department received a phone call about a
possible break-in at a nearby church. When Fortner responded to the
call, he found Ensley's car parked in front of the church. Fortner used
his loudspeaker and asked Ensley to come out of the church. Upon
receiving no response, Fortner threatened to send in a police dog. At
that point, Ensley came out and Fortner placed him under arrest. Ens-
ley was carrying a flashlight and he had a hammer in the back seat
of his car. Fortner found that a window had been broken in the front
of the church. Additionally, when Fortner went inside the church with
the church pastor, the church pastor indicated to Fortner that a porta-
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ble piano inside the church had been moved approximately twenty
feet. Fortner testified that Ensley did not have permission to enter the
church.
Based on this testimony, the district court found by a preponder-
ance of the evidence that Ensley had violated the terms of his super-
vised release. The court revoked Ensley's supervised release and
sentenced him to twelve months imprisonment.
Ensley first contends that because he was sentenced on May 17,
1993, his term of supervised release expired, one year later, on May
16, 1994. Ensley claims, therefore, that the district court was without
authority to revoke his supervised release since the notice of violation
was not filed until July 5, 1994. This claim is without merit. When
Ensley was originally convicted, the district court's judgment specifi-
cally provided: "Upon release from imprisonment, the defendant shall
be on supervised release for a term of 1 year." (emphasis added).
Additionally, the federal statute which gives the district court the
authority to place a person on supervised release, provides that the
term of supervised release commences after imprisonment. See 18
U.S.C.A. § 3583(a) (West Supp. 1995) (court may include as part of
sentence a term of supervised release after imprisonment). Accord-
ingly, because the one-year term of Ensley's supervised release ran
from July 7, 1993, the date he was released from prison, until July 6,
1994, Ensley was still on supervised release when the notice of viola-
tion was filed on July 5, 1994. See United States v. Barton, 26 F.3d
490, 491 (4th Cir. 1994) (revocation hearing authorized if revocation
petition filed before expiration of supervised release). Further, there
is no basis to Ensley's claim that his release term was improperly
revoked because the notice of violation was filed five weeks after the
commission of the offense.
Ensley next claims that the district court erred in considering Fort-
ner's hearsay testimony. Ensley contends that because the Govern-
ment was required to prove that he actually committed the offense
and was not merely relying on a previous state conviction, Ensley was
entitled to the full protection of the Federal Rules of Evidence. Fed-
eral Rule of Evidence 1101(d)(3) explicitly provides that the rules of
evidence do not apply to miscellaneous proceedings such as probation
revocation hearings. There is no exception for situations where the
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Government is required to prove the offense without the benefit of a
previous state conviction. Accordingly, this contention is without
merit.
Finally, Ensley claims that there was insufficient evidence to sup-
port the revocation. The evidence presented in this case constituted a
sufficient basis upon which the district court could be reasonably sat-
isfied that Ensley violated the conditions of his supervised release.
See United States v. Cates, 402 F.2d 473, 474 (4th Cir. 1968); United
States v. Williams, 378 F.2d 665, 666 (4th Cir. 1967). Fortner, an eye-
witness, testified that when he answered a call reporting a break-in,
he found Ensley inside a church with a broken window without per-
mission, carrying a flashlight at two o'clock in the morning, and the
church's portable piano had been moved. This evidence was sufficient
to support a finding that Ensley committed a criminal violation and,
thus, violated the terms of his supervised release. Having found that
Ensley violated the terms of his supervised release, the district court
did not abuse its discretion in deciding to revoke Ensley's term of
supervised release. See United States v. Stephenson, 928 F.2d 728,
731 (6th Cir. 1991); United States v. Taylor, 321 F.2d 339, 341 (4th
Cir. 1963).
For the foregoing reasons, we affirm the order of the district court
revoking Ensley's supervised release. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court.
AFFIRMED
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