United States v. Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4165

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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. Johnson presents two

primary appellate contentions: first, he challenges the court’s

revocation of supervised release, contending that it erred in

admitting unreliable hearsay testimony at the revocation

hearing; and, second, he maintains that the court gave an

inadequate explanation for the revocation sentence, rendering it

plainly unreasonable. As explained below, we affirm.

In August 1997, Johnson was convicted in the Eastern

District of North Carolina of extortion by 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. To abide by the conditions

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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 his second term of supervised release. He

returned to Bannum Place, resumed his therapy program, and

attempted to obtain lawful employment. Less than two months

later, however, Probation Officer 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”);

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(2) failing to maintain lawful employment (the “employment

violation”); and (3) failing to participate in a mental health

treatment program (the “therapy violation”). With respect to

the rules violation, Connolley asserted 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

“demeaning” and refused “to work around black people.” J.A. 36. 1

Finally, Connolley maintained that Johnson committed the therapy

violation by missing a scheduled session with his Trinity

Wellness Center therapist on August 20, 2008. Connolley

included with the revocation motion a Supervised Release

Violation Worksheet, by which he applied Chapter 7 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 11, 2009, the district court conducted a

hearing on the second motion for revocation of supervised

release. After Johnson denied violating any conditions of

supervised release, the prosecutor presented Connolley’s

testimony to establish that Johnson had committed the three

violations. Asserting that Connolley’s testimony consisted of

inadmissible hearsay, Johnson objected thereto. Johnson

maintained that Connolley lacked first-hand knowledge of the

alleged violative conduct and had only learned of Johnson’s

behavior by meeting with Johnson’s therapist and the Bannum

Place staff. Johnson thus protested that admission of

Connolley’s testimony infringed on his right to confront and

cross-examine adverse witnesses. In response, the prosecution

erroneously asserted that 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).

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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 a scheduled session at Trinity

Wellness Center, thereby committing the therapy violation.

Notably, however, Connolley had first-hand 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. Based solely on

Connolley’s testimony — the prosecution 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 heard argument from the

parties regarding sentencing. In that regard, the prosecution

maintained that Johnson was “psychologically distorted” and had

refused medication and proper treatment, rendering him “as

dangerous . . . as he was when he was first incarcerated.” J.A.

67. The Government thus requested a statutory maximum sentence

of 24 months, notwithstanding Johnson’s advisory Guidelines

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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] credit for time served and

terminate supervised release.” Id. at 72. 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 Complex (“Butner”) in Butner, North

Carolina. 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. The court also recommended

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that Johnson “receive mental health evaluation, mental health

treatment, and counseling and medical treatment for his current

medical problems.” Id. at 78–79.

Johnson timely noticed this appeal, and we possess

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.

§ 1291.

II.

We review for abuse of discretion a district court’s

decision to revoke supervised release. 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. See United States v. Oquendo-Rivera,

586 F.3d 63, 67 (1st Cir. 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

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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.

In this appeal, Johnson first challenges the district

court’s decision to revoke his term of supervised release,

contending that the court abused its discretion by admitting and

considering unreliable hearsay evidence — namely, Officer

Connolley’s testimony. Johnson maintains that Connolley’s

testimony was predicated on the out-of-court 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 has determined that they must satisfy minimum

requirements of due process, including a limited right “to

confront and cross-examine adverse witnesses.” Morrissey v.

Brewer, 408 U.S. 471, 489 (1972). Federal Rule of Criminal

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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 interest of

justice does not require the witness to appear.” Fed. R. Crim.

P. 32.1(b)(1)(B)(iii). 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 it.” Fed. R. Crim. P. 32.1 advisory

committee’s note (2002). Notably, we have recognized that,

pursuant to Rule 32.1, a court may only consider hearsay

evidence in a revocation proceeding if it is “demonstrably

reliable.” United States v. McCallum, 677 F.2d 1024, 1026 (4th

Cir. 1982).

Here, there is no indication that the district court

conducted a Rule 32.1 analysis. 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 assess whether “the interest of justice” warranted

admission of hearsay evidence. See Fed. R. Crim. P.

32.1(b)(1)(B)(iii). Nor did the court determine that the out-

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of-court statements underlying Connolley’s testimony were

“demonstrably reliable.” See McCallum, 677 F.2d at 1026.

Accordingly, the court necessarily abused its discretion when it

admitted Connolley’s hearsay testimony. See United States v.

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 non-hearsay evidence to support the

employment violation. More specifically, Officer 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, despite being instructed by the

probation office to do so. 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). Accordingly,

although the court erred in failing to make the Rule 32.1

assessment of whether the hearsay evidence was demonstrably

reliable and whether the interest of justice necessitated its

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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 Fed. R. Crim. P. 52(a) (“Any error, defect,

irregularity, or variance that does not affect substantial

rights must be disregarded.”).

Finally, Johnson challenges his revocation sentence as

plainly unreasonable. The district court imposed a 22-month

revocation sentence, less than the 24-month statutory maximum

but more than the 8- to 14-month range advised by the

Guidelines. 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

plainly unreasonable, we must first determine whether the

sentence is unreasonable, taking into account the sentencing

court’s broad discretion in imposing such a sentence. See

United States v. Thompson, 595 F.3d 544, 546–47 (4th Cir. 2010).

Indeed, our inquiry into whether a revocation sentence is

unreasonable “takes a more deferential appellate posture

concerning issues of fact and the exercise of discretion than

reasonableness review for guidelines sentences.” United States

v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal

quotation marks omitted). Although a sentencing court must

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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 22-month revocation sentence. The court

specifically referenced Johnson’s mental health 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). See 18 U.S.C.

13
§ 3553(a)(2)(D); see also id. § 3583(e) (requiring sentencing

court to consider aspects of § 3553(a) before imposing

revocation sentence). Johnson does not contend that the court

failed to consider other pertinent sentencing factors (or that

it considered impermissible factors). In these circumstances,

Johnson’s revocation sentence is not unreasonable and thus

cannot be plainly unreasonable. 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.

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IV.

Pursuant to the foregoing, we reject Johnson’s appellate

contentions and affirm.

AFFIRMED