UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4630
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO NEIL MURPHY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:01-cr-00115-MR-1)
Submitted: June 29, 2009 Decided: July 16, 2009
Before TRAXLER, Chief Judge, and KING and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
David L. Hitchens, LAW OFFICE OF DAVID L. HITCHENS, PLLC,
Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Cortney Escaravage, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mario Neil Murphy appeals the district court’s
judgment revoking his supervised release and sentencing him to
eighteen months’ imprisonment followed by a three-year term of
supervised release. On appeal, Murphy challenges the
revocation, maintaining that the district court erred in
admitting unreliable hearsay statements and that the court’s
findings were insufficient to support the revocation. Finding
no reversible error, we affirm.
Murphy first argues that the district court admitted
unreliable hearsay testimony. Specifically, he asserts that the
district court erred in admitting hearsay statements of Shawn
Harris, the alleged victim, through the testimony of police
officers when the Government failed to show the evidence was
reliable and failed to show a need to present hearsay evidence
instead of a live witness. In this regard, Murphy further
maintains that the district court failed to balance Murphy’s
right to confrontation against the Government’s good cause to
deny the right. Murphy claims that, aside from the hearsay
testimony, there was no evidence presented that he was involved
in the robbery. The Government responds that the statements
were admissible hearsay because they qualified as excited
utterances and, in any event, the statements had substantial
indicia of reliability.
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The district court’s decision to admit hearsay
evidence is reviewed for abuse of discretion. See United
States v. Mohr, 318 F.3d 613, 618 (4th Cir. 2003). Supervised
release revocation hearings are informal proceedings in which
the rules of evidence need not be strictly observed. Fed. R.
Evid. 1101(d)(3). While the Federal Rules of Evidence regarding
hearsay do not apply at a supervised release revocation hearing,
a defendant is still afforded some confrontation rights in a
revocation proceeding. In Morrissey v. Brewer, 408 U.S. 471
(1972), the Supreme Court held that a defendant must receive a
fair and meaningful opportunity to refute or impeach evidence
against him “to assure that the findings of a parole violation
will be based on verified facts.” Id. at 484. Among the
defendant’s rights in a parole revocation context is “the right
to confront and cross-examine adverse witnesses (unless the
hearing officer specifically finds good cause for not allowing
confrontation).” Id. at 489; see also Gagnon v. Scarpelli, 411
U.S. 778, 782 (1973) (extending Morrissey rights to
probationers). The due process requirements recognized in
Morrissey are incorporated in Fed. R. Crim. P. 32.1(a)(2), which
is applicable to supervised release revocation proceedings.
We have held that a showing that the hearsay evidence
is “demonstrably reliable” is sufficient to satisfy the
requirements of Rule 32.1. United States v. McCallum, 677 F.2d
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1024, 1026 (4th Cir. 1982). We have reviewed the parties’
briefs and the materials submitted in the joint appendix,
particularly the transcript of the revocation hearing, and
conclude that the hearsay evidence was sufficiently reliable.
Therefore, the district court did not abuse its discretion in
admitting the evidence.
Last, Murphy argues that the district court’s findings
were insufficient to support the revocation of his supervised
release. This court reviews the district court’s revocation of
supervised release for 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). We review for clear error factual determinations
underlying the conclusion that a violation occurred. United
States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003); United
States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996). After
reviewing the record, we conclude the district court’s finding
that Murphy committed the violations alleged in the petition is
sufficiently supported. Therefore, the court properly revoked
Murphy’s supervised release.
This court will affirm a sentence imposed after
revocation of supervised release if it is within the applicable
statutory maximum and is not plainly unreasonable. United
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States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006).
Murphy does not challenge the specific sentence imposed by the
district court upon revocation of supervise release, and
therefore, he has waived that issue.
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 the
court and argument would not aid the decisional process.
AFFIRMED
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