Filed: Feb. 17, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5098 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RODRIGUEZ CLINTONIAN GRIER, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:99-cr-00161-FDW-1) Submitted: February 2, 2011 Decided: February 17, 2011 Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per c
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5098 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. RODRIGUEZ CLINTONIAN GRIER, Defendant – Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:99-cr-00161-FDW-1) Submitted: February 2, 2011 Decided: February 17, 2011 Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per cu..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5098
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RODRIGUEZ CLINTONIAN GRIER,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:99-cr-00161-FDW-1)
Submitted: February 2, 2011 Decided: February 17, 2011
Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Tony E. Rollman, Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, Edward R. Ryan, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rodriguez Clintonian Grier appeals the district
court’s judgment revoking his supervised release and sentencing
him to twelve months and one day of imprisonment followed by
four years of supervised release. Grier’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal, but
questioning whether the district court erred in considering
hearsay evidence during the revocation of supervised release
hearing. Grier was notified of his right to file a pro se
supplemental brief but has not done so. The Government declined
to file a brief. We affirm.
We review the district court’s decision to revoke a
defendant’s supervised release for an abuse of discretion.
United States v. Pregent, 190 F.3d 279, 282 (4th Cir. 1999).
The district court need only find a violation of a condition of
supervised release by a preponderance of the evidence. 18
U.S.C. § 3583(e)(3) (2006); Johnson v. United States,
529 U.S.
694, 700 (2000). The factual determinations informing the
district court’s conclusion that a violation occurred are
reviewed for clear error. United States v. Carothers,
337 F.3d
1017, 1019 (8th Cir. 2003). A district court’s evidentiary
rulings are reviewed for abuse of discretion and harmless error.
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United States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009),
cert. denied,
130 S. Ct. 2128 (2010).
A defendant at a supervised release hearing is
afforded a limited right “to confront and cross-examine adverse
witnesses.” Morissey v. Brewer, 408 U.S. 471, 489 (1972). The
defendant must, pursuant to Federal Rule of Criminal Procedure
32.1, have the opportunity at a revocation hearing “to question
any adverse witness, unless the court determines that the
interest of justice does not require the witness to appear.”
Fed. R. Crim. P. 32.1(b)(2)(C). Under this rule, “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 it.” Fed. R. Crim. P. 32.1
advisory committee’s note (2002).
Here, the district court admitted over objection
certain hearsay evidence concerning Grier’s behavior at a
halfway house. In doing so, the district court failed to
assess, under Rule 32.1(b)(2)(C), whether admission of the
evidence was in the interest of justice. However, our review of
the record convinces us that admission of the hearsay evidence
for the purposes of assessing whether Grier committed the
charged violations was harmless. The district court had ample
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grounds for revoking Grier’s supervised release, including
Grier’s own admissions and violations directly observed by the
probation officer, who did testify and was available for
cross-examination. Furthermore, admission of hearsay evidence
for sentencing purposes is not improper and, in any event, the
district court’s thorough explanation for the sentence it
imposed did not reference the disputed evidence. Accordingly,
we find no reversible error.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on the client. Finally, 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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