US v. William Johnson, Jr., No. 09-4165 (4th Cir. 2010)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4165 UNITED STATES OF AMERICA, Plaintiff Appellee, v. WILLIAM HORACE JOHNSON, JR., Defendant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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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. primary appellate contentions: Johnson presents two first, he challenges the court s revocation of supervised release, contending that it erred in admitting unreliable hearing; and, second, hearsay he testimony maintains that at the the revocation court gave an inadequate explanation for the revocation sentence, rendering it plainly unreasonable. As explained below, we affirm. I. In August District of 1997, was Carolina North Johnson of convicted extortion in the by Eastern 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. 2 To abide by the conditions 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 returned to his Bannum second Place, term of resumed supervised his attempted to obtain lawful employment. later, however, Probation Officer release. therapy program, He and Less than two months 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 ). the rules violation, Connolley asserted With respect to 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 J.A. 36. 1 demeaning and refused to work around black people. Finally, Connolley maintained that Johnson committed the therapy violation by missing Wellness Center included with Violation a scheduled therapist the Worksheet, on August revocation by session motion which he 20, a applied with his 2008. Trinity Connolley Supervised Chapter 7 Release 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 hearing on the release. testimony to Place for denied the establish district revocation violating prosecutor that court Johnson conducted of any had supervised conditions presented a of Connolley s committed the three Asserting that Connolley s testimony consisted of inadmissible maintained the motion Johnson release, violations. hearsay, that by staff. Johnson Connolley violative behavior 2009, second After supervised alleged 11, conduct meeting with Johnson objected lacked and first-hand had Johnson s thus thereto. only knowledge learned therapist protested Johnson that of and of the Johnson s the Bannum admission of Connolley s testimony infringed on his right to confront and cross-examine adverse witnesses. erroneously asserted that In response, the prosecution 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 Wellness Center, thereby Notably, however, Connolley a scheduled committing had session the at therapy first-hand Trinity violation. 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. Connolley s testimony the prosecution Based solely on 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 parties regarding sentencing. heard argument from the In that regard, the prosecution maintained that Johnson was psychologically distorted and had refused medication and proper treatment, rendering him dangerous . . . as he was when he was first incarcerated. 67. of as J.A. The Government thus requested a statutory maximum sentence 24 months, notwithstanding Johnson s 6 advisory Guidelines 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] terminate supervised release. credit Id. at 72. for time served and 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 Carolina. Complex ( Butner ) in Butner, North 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. 7 The court also recommended that Johnson receive mental health evaluation, mental health treatment, and counseling and medical treatment for his current medical problems. Id. at 78 79. Johnson noticed jurisdiction timely pursuant to this 18 U.S.C. appeal, and § 3742(a) we and possess 28 U.S.C. § 1291. II. We review for abuse of discretion decision to revoke supervised release. a district court s 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. 586 F.3d 63, 67 (1st Cir. See United States v. Oquendo-Rivera, 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 court s this appeal, decision to Johnson revoke first his challenges term district supervised of the release, contending that the court abused its discretion by admitting and considering unreliable Connolley s testimony. testimony was hearsay predicated evidence namely, Johnson maintains on out-of-court the that Officer Connolley s 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 requirements confront and has of determined due process, cross-examine that they including adverse Brewer, 408 U.S. 471, 489 (1972). 9 must a satisfy limited witnesses. minimum right Morrissey to v. Federal Rule of Criminal 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 justice does not require the witness to appear. P. 32.1(b)(1)(B)(iii). interest of Fed. R. Crim. 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 committee s note Fed. (2002). pursuant to Rule evidence in a reliable. it. R. Notably, 32.1, a revocation court Crim. we may proceeding P. 32.1 advisory have recognized only consider if it is that, hearsay demonstrably United States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982). Here, there is no indication conducted a Rule 32.1 analysis. that the district court 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 admission assess of whether hearsay 32.1(b)(1)(B)(iii). the interest evidence. See of justice Fed. R. warranted Crim. P. Nor did the court determine that the out10 of-court statements demonstrably underlying reliable. See Connolley s McCallum, testimony 677 F.2d at were 1026. Accordingly, the court necessarily abused its discretion when it See United States v. admitted Connolley s hearsay testimony. 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 employment violation. non-hearsay More evidence to specifically, support Officer the 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, probation office to do so. despite being instructed by the 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). although the assessment of court erred whether the in failing hearsay to make evidence Accordingly, the was Rule 32.1 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 irregularity, Fed. or R. Crim. variance P. that 52(a) does ( Any not error, affect defect, substantial rights must be disregarded. ). B. Finally, Johnson challenges plainly unreasonable. his revocation sentence as The district court imposed a 22-month revocation sentence, less than the 24-month statutory maximum but more than Guidelines. the 8- to 14-month range advised by the 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 unreasonable, plainly sentence court s is we must unreasonable, broad first taking discretion in determine into imposing account such whether the a the sentencing sentence. See United States v. Thompson, 595 F.3d 544, 546 47 (4th Cir. 2010). Indeed, our inquiry into unreasonable takes a whether more a revocation deferential sentence appellate is posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences. v. Moulden, quotation 478 marks F.3d 652, omitted). 656 (4th Although 12 a Cir. United States 2007) sentencing (internal court must 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 specifically 22-month referenced revocation Johnson s sentence. mental health The court 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). 13 See 18 U.S.C. § 3553(a)(2)(D); court to see consider revocation sentence). also id. aspects § 3583(e) of (requiring § 3553(a) before sentencing imposing Johnson does not contend that the court failed to consider other pertinent sentencing factors (or that it considered impermissible factors). Johnson s revocation sentence cannot be plainly unreasonable. is not In these circumstances, unreasonable and thus 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. 14 IV. Pursuant to the foregoing, we reject Johnson s appellate contentions and affirm. AFFIRMED 15

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