UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4042
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID LEE DRAYTON, a/k/a Diamond,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:94-cr-00126-MOC-7)
Submitted: December 28, 2015 Decided: January 6, 2016
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Lee Drayton appeals the district court’s judgment
revoking his supervised release and sentencing him to a term of
51 months’ imprisonment. We affirm.
We review a district court’s judgment revoking supervised
release for abuse of discretion, and its factual findings for
clear error. United States v. Padgett, 788 F.3d 370, 373 (4th
Cir. 2015), cert. denied, __ S. Ct. __, 2015 WL 5937870 (U.S.
Nov. 9, 2015) (No. 15-6499); United States v. Copley, 978 F.2d
829, 831 (4th Cir. 1992). 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) (2012);
Copley, 978 F.2d at 831. “[A] preponderance of the evidence . .
. simply requires the trier of fact to believe that the
existence of a fact is more probable than its nonexistence.”
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(internal quotation marks omitted).
Drayton admitted at the hearing that he violated the terms
of his supervised release by engaging in the cocaine transaction
charged in the violation petition. He asserts, however, that
the district court erred in rejecting his entrapment defense.
The defense of entrapment “has two elements: (1) government
inducement of the crime and (2) the defendant’s lack of
predisposition to engage in the criminal conduct.” United
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States v. Ramos, 462 F.3d 329, 334 (4th Cir. 2006). The defense
uses a burden-shifting scheme, where the defendant bears the
“initial burden of presenting evidence that the government
induced him to commit the crime.” United States v. Jones, 976
F.2d 176, 179 (4th Cir. 1992). Once the defendant has done so,
the burden shifts to the government to establish the defendant’s
predisposition. Id. Thus, even if the government did induce a
defendant to commit a crime, the defense of entrapment fails if
the government can prove predisposition. United States v.
Squillacote, 221 F.3d 542, 569 (4th Cir. 2000).
Assuming Drayton showed that he was induced to participate
in the cocaine transaction with an undercover agent, the
district court did not clearly err in finding that the
government met its burden of demonstrating predisposition.
Drayton was recently on supervised release for a cocaine
conspiracy conviction at the time he sold cocaine to an
undercover agent. Further, the circumstances of the violation,
in which Drayton entered the agent’s car on his own initiative
without the confidential informant, discussed pricing, and
offered to sell the agent even more cocaine, show that the
decision by Drayton to commit the offense was his own preference
and not the product of government persuasion. See United States
v. Osborne, 935 F.2d 32, 38 (4th Cir. 1991).
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Next, Drayton contends that the court improperly admitted
the agent’s testimony about jail call statements made by Drayton
and another individual, and failed to conduct the requisite
balancing test under Fed. R. Crim. P. 32.1. The decision to
admit hearsay evidence at a revocation hearing is reviewed for
abuse of discretion. United States v. Doswell, 670 F.3d 526,
529 (4th Cir. 2012). Evidentiary rulings are subject to
harmless error review. United States v. Johnson, 617 F.3d 286,
292 (4th Cir. 2010). In reviewing the admission of hearsay in a
revocation hearing, “the proper harmlessness test must ensure
that the error had no substantial and injurious effect or
influence on the outcome, not whether the error was harmless
beyond a reasonable doubt.” United States v. Ferguson, 752 F.3d
613, 618 (4th Cir. 2014) (internal quotation marks omitted).
Upon our review, we find that assuming the statements in
question to be hearsay, their admission constitutes harmless
error. Drayton admitted that the charged violation conduct took
place, and as noted above, there was ample other evidence
showing predisposition. Thus even without the challenged
testimony describing the jail call statements, the evidence
supported the court’s rejection of Drayton’s entrapment defense
and its finding that he violated the terms of his supervised
release.
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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
this court and argument would not aid the decisional process.
AFFIRMED
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