United States v. Johnny Dowdy, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4214
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNY L. DOWDY, JR., a/k/a Supreme,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:02-cr-00165-1)
Submitted: September 11, 2014 Decided: September 23, 2014
Before NIEMEYER and MOTZ, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joel M. Bondurant, Jr., BONDURANT LAW FIRM, Atlanta, Georgia,
for Appellant. R. Booth Goodwin, II, United States Attorney,
John J. Frail, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnny L. Dowdy, Jr., was convicted of aiding and
abetting possession with intent to distribute more than five
grams of cocaine base, in violation of 18 U.S.C. § 2 (2012) and
21 U.S.C. § 841(a)(1) (2012), and possession of a firearm in
furtherance of a drug trafficking offense, in violation of
18 U.S.C. § 924(c)(1) (2012), and was sentenced to 151 months’
imprisonment, a consecutive term of sixty months’ imprisonment,
and two concurrent five-year terms of supervised release.
During this period of supervision, Dowdy pled guilty in North
Carolina state court to failing to notify the Department of
Motor Vehicles of an address change and having improper
equipment, failed to report to his probation officer, failed to
notify his probation officer ten days prior to a change in his
residence, left the district in which he was being supervised
without permission, and obstructed a police officer in West
Virginia. The district court also determined that Dowdy
committed battery in West Virginia while on supervised release,
revoked that release, and sentenced Dowdy to fourteen months’
imprisonment and forty-six months of supervised release.
On appeal, Dowdy contends that the district court
erred in admitting hearsay evidence from the victim of the
alleged battery. Specifically, Dowdy argues that the court
failed to comply with Fed. R. Crim. P. 32.1(b)(2)(C) and
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United States v. Doswell, 670 F.3d 526 (4th Cir. 2012), when it
admitted into evidence the victim’s statements to police
officers without balancing his interest in confronting the
victim against the Government’s proffered reason for the
victim’s non-appearance at the revocation hearing. We affirm.
We review a district court’s ruling to admit hearsay
evidence during a supervised release revocation hearing for
abuse of discretion. United States v. Medford, 661 F.3d 746,
751 (4th Cir. 2011). “Supervised release revocation hearings
are informal proceedings in which the rules of evidence,
including those pertaining to hearsay, need not be strictly
applied.” Doswell, 670 F.3d at 530. However, due process
affords a releasee a limited right “to confront and
cross-examine adverse witnesses” at a revocation hearing “unless
the hearing officer specifically finds good cause for not
allowing confrontation.” Morrissey v. Brewer, 408 U.S. 471, 489
(1972). 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 confrontation.” Doswell, 670 F.3d
at 530. Further, the due process guarantee is embodied in the
procedural rule that a releasee is “entitled to . . . question
any adverse witness unless the court determines that the
interest of justice does not require the witness to appear.”
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Fed. R. Crim. P. 32.1(b)(2)(C). However, evidentiary rulings
are subject to harmless error review, such that any error is
harmless where we may “say with fair assurance, after pondering
all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the
error.” United States v. Johnson, 617 F.3d 286, 292 (4th Cir.
2010) (internal quotation marks omitted); see United States v.
Ferguson, 752 F.3d 613, 618 (4th Cir. 2014) (stating that a
district court’s violation of Rule 32.1(b)(2)(C) is “properly
understood as a garden-variety evidentiary mistake, not a
constitutional one” and that the proper test for harmlessness
ensures that the error had “no substantial and injurious effect
or influence on the outcome” (internal quotation marks
omitted)).
Applying these standards, we conclude that, regardless
of whether the hearsay evidence was properly admitted, any
alleged error was harmless. Dowdy does not contend that the
district court lacked sufficient grounds to revoke his
supervised release or that he should not be serving a revocation
prison term. Rather, Dowdy argues that the district court’s
battery finding was the “determinative factor” underlying the
revocation sentence. We reject this contention as it lacks
support in the record. All of Dowdy’s violations of supervised
release were Grade C violations, U.S. Sentencing Guidelines
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Manual § 7B1.1(a)(3), p.s. (2013), and the district court relied
on a host of circumstances — including Dowdy’s violative
behavior and criminal history, the need for the sentence to
protect the public, and the appropriateness of sanctioning
Dowdy’s breach of trust while on release — in imposing sentence
within the advisory policy statement range of eight to fourteen
months’ imprisonment. Further, on appeal, Dowdy does not
challenge the propriety of his revocation sentence.
We therefore conclude that any evidentiary error was harmless.
Accordingly, we affirm the district court’s judgment.
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 the decisional process.
AFFIRMED
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