US v. Johnny Dowdy, Jr., No. 14-4214 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4214 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY L. DOWDY, JR., a/k/a Supreme,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 Before NIEMEYER Circuit Judge. and MOTZ, Circuit Decided: Judges, September 23, 2014 and DAVIS, Senior Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Motor state court Vehicles of to an failing address to notify change the and Department having of 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, Virginia. The and obstructed district court a police also officer determined in that West 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 erred in alleged failed appeal, admitting battery. to comply Dowdy contends that the district hearsay evidence from the victim Specifically, with Fed. R. 2 Dowdy Crim. argues P. that court of the 32.1(b)(2)(C) the court and United States v. Doswell, 670 F.3d 526 (4th Cir. 2012), when it admitted into officers without victim evidence against the balancing the victim s his statements interest Government s in to police confronting proffered reason victim s non-appearance at the revocation hearing. for the the 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 including those applied. affords proceedings pertaining Doswell, a in 670 releasee a which to the hearsay, rules F.3d at limited 530. need of not However, right to evidence, be strictly due process confront and cross-examine adverse witnesses at a revocation hearing unless the hearing officer specifically allowing confrontation. finds good cause for not 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. at 530. Doswell, 670 F.3d 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. 3 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 alleged error was harmless. district court lacked was properly admitted, any Dowdy does not contend that the 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 violations, were Grade C 4 U.S. Sentencing Guidelines Manual § 7B1.1(a)(3), p.s. (2013), and the district court relied on a host behavior protect of and the circumstances criminal public, history, and the including the need Dowdy s for appropriateness the violative sentence of to sanctioning Dowdy s breach of trust while on release in imposing sentence within the advisory policy statement range of eight to fourteen months imprisonment. challenge the Further, propriety of on appeal, his Dowdy revocation does not sentence. We therefore conclude that any evidentiary error was harmless. Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 5
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