FILED
NOT FOR PUBLICATION
JUL 7 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10161
Plaintiff-Appellee, D.C. No.
2:08-cr-00048-RLH-RJJ-1
v.
JOHN A. HUDSON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted April 20, 2017
San Francisco, California
Before: PAEZ and IKUTA, Circuit Judges, and FABER,** District Judge.
Appellant John Hudson (“Hudson”) appeals the revocation of his supervised
release term, which was the result of a Probation Department search of his home
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
that uncovered a gun and other contraband. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
We review for abuse of discretion the denial of a motion to recuse, Yagman
v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993), the decision to revoke a term of
supervised release, United States v. Harvey, 659 F.3d 1272, 1274 (9th Cir. 2011),
and the substantive reasonableness of a sentence, United States v. Overton, 573
F.3d 679, 700 (9th Cir. 2009). By contrast, whether a defendant’s due process
rights were violated at a revocation hearing is a mixed question of fact and law that
we review de novo. United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008). “A
due process violation at a revocation proceeding is subject to harmless error
analysis.” Id.
1. The district court did not abuse its discretion in denying the motion for
recusal. A federal judge must recuse himself “in any proceeding in which his
impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). But ex parte
communications with probation officers, In re Complaint of Judicial Misconduct,
583 F.3d 597, 597 (9th Cir. 2009), opinions, rulings based on the proceedings, a
judge’s questioning during oral arguments, and a judge’s “expressions of
impatience, dissatisfaction, annoyance, and even anger” do not typically warrant
recusal, Liteky v. United States, 510 U.S. 540, 554–56 (1994). Although, here, the
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proceedings below were often tense and antagonistic, the judge’s actions were
insufficient to require recusal.
2. Nor did the district court abuse its discretion in revoking Hudson’s term
of supervised release based on his constructive possession of the gun and other
contraband. “In order to prove constructive possession of property, the
government must demonstrate that the defendant both knows of the presence of the
contraband and has power to exercise dominion and control over it.” United States
v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985). “[V]iewing the evidence in the
light most favorable to the government,” United States v. Aquino, 794 F.3d 1033,
1036 (9th Cir. 2015) (internal citations and quotation omitted), the government
carried its burden to show by a preponderance of the evidence that Hudson knew of
the gun and other contraband found in the master bedroom closet of the house he
shared with his girlfriend.
3. Additionally, the district court did not violate any federal rules or
Hudson’s Fifth Amendment rights when it provided a limited portion of the
Probation Department’s chronological records to him. When determining whether
a releasee has had “a fair and meaningful opportunity” to exercise his Fifth
Amendment confrontation rights, “we employ ‘a process of balancing the
releasee’s right to confrontation against the Government’s good cause for denying
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it.’” United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993) (quoting United
States v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987)) (internal alteration omitted).
Given that Hudson was afforded the opportunity to cross-examine witnesses who
composed the chronologies, the unreleased chronologies did not form the basis of
the district court’s ultimate ruling, and the unreleased chronologies had little, if
any, impact on consequences of the court’s ruling, id. at 311–12, the balance
weighs in the Government’s favor. Moreover, even if Hudson could have used the
chronologies to impeach Officer Powell’s testimony, there is no dispute that
Officer Goldner, who also testified, found the gun in the closet.
4. Finally, the district court did not abuse its discretion when sentencing
Hudson. Whether the sentence imposed is substantively reasonable turns on
“whether the record as a whole reflects rational and meaningful consideration of
the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Ruiz-Apolonio,
657 F.3d 907, 911 (9th Cir. 2011). The district court touched on multiple §
3553(a) factors, including the nature of the offense, the need for the sentence
imposed, and the lack of any reason to depart upward from the Sentencing
Guidelines. It was therefore not an abuse of discretion to sentence Hudson to 12
months, which was within the guidelines’ range of 8 to 14 months.
AFFIRMED.
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