United States v. James Allen

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-5004

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JAMES TYLER ALLEN,

Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:01-cr-00263-JAB-4)

Submitted: June 30, 2011 Decided: July 5, 2011

Before WILKINSON, DUNCAN, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Sandra J. Hairston, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

James Tyler Allen was convicted of conspiracy to

distribute cocaine base and cocaine hydrochloride, in violation

of 21 U.S.C. §§ 841(a), 846 (2006). Allen was sentenced to

seventy-eight months in prison, followed by a five-year term of

supervised release. While on supervised release, Allen violated

two conditions of his supervised release. The district court

revoked Allen’s supervised release term and sentenced him to

thirty-six months in prison. On appeal, Allen contends that the

district court erred in revoking his term of supervised release

because the only evidence supporting the revocation was a law

enforcement officer’s hearsay testimony identifying Allen as

having sold on several occasions a controlled substance to a

confidential informant. 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

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rulings are reviewed for abuse of discretion and harmless error.

United States v. Johnson, 587 F.3d 625, 637 (4th Cir.), 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(b),

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 Allen’s

objection hearsay evidence concerning a confidential informant’s

and a law enforcement official’s observations during controlled

purchases of narcotics, and their identification of Allen as the

person who sold the drugs. In doing so, the district court

failed to assess, under Rule 32.1(b)(2)(C), whether the

admission of the evidence was in the interest of justice.

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However, our review of the record convinces us that admission of

the hearsay evidence for purposes of assessing whether Allen

committed the charged violations was harmless. The district

court had ample grounds for revoking Allen’s supervised release,

including Allen’s admissions during the execution of a search

warrant at his residence, which substantially corroborated the

hearsay testimony concerning Allen’s identification and drug

dealing efforts. Thus, we find no reversible error.

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