NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0231n.06
No. 19-4134
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) FILED
) Apr 28, 2020
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. )
ON APPEAL FROM THE UNITED
)
STATES DISTRICT COURT FOR THE
PAUL HENDERSON, )
NORTHERN DISTRICT OF OHIO
)
Defendant-Appellant. )
)
BEFORE: DAUGHTREY, GIBBONS, and MURPHY, Circuit Judges.
MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Paul Henderson appeals the
judgment of the district court sentencing him to 14 months’ incarceration for violating three
conditions of his supervised release. Henderson argues that the district court failed to ensure that
he knowingly and voluntarily admitted to an allegation that he possessed scheduled drugs and drug
paraphernalia. The defendant thus claims that the district court should have conducted an
evidentiary hearing to determine his culpability regarding that violation. To the extent that
Henderson can establish error in this matter, such error was harmless and did not affect the
sentence imposed upon him. We thus affirm the district court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2011, Henderson pleaded guilty in federal district court to distribution of crack cocaine.
The district court sentenced him to serve 52 months in prison, the federal sentence to commence
after completion of service of an Ohio state sentence, and to be followed by three years of
No. 19-4134, United States v. Henderson
supervised release. Pursuant to the provisions of 18 U.S.C. § 3582(c)(2), that 52-month sentence
later was reduced to 42 months, and Henderson began serving the supervised release portion of his
sentence on January 25, 2018.
In July 2019, Henderson’s probation officer reported that the defendant had left the
jurisdiction without permission and had tested positive for cocaine use during a random drug
screen. As a result, the district court ordered Henderson to submit to location monitoring for 90
days starting August 6, 2019, meaning that he was required to obtain permission from his probation
officer to leave his residence for any purpose other than for work, to obtain medical treatment, or
to attend religious services. Other conditions of supervised release previously imposed upon
Henderson—including not possessing a firearm or ammunition, not possessing any illegal
controlled substance, participating in drug treatment and testing, participating in mental health
testing, working toward a Certificate of General Educational Development (GED), avoiding all
contact with gang members, and submitting to searches of his person and residence “based upon
reasonable suspicion of contraband or evidence of a violation of a condition of release”—remained
in effect.
Unfortunately for Henderson, his probation officer filed a second violation report in
September 2019, this time outlining four violations of the terms of the defendant’s supervised
release. Violation 1 alleged that “Henderson made numerous unauthorized stops since being
enrolled in the location monitoring program.” Violation 2 alleged that “Henderson failed to enroll
in GED courses since beginning his term of supervised release.” Violation 3 alleged that, during
a search of Henderson’s residence, law enforcement officers found drugs and drug paraphernalia.
And finally, Violation 4 alleged that, during that same search of Henderson’s residence, officers
recovered a revolver and 46 rounds of ammunition. The violation report set forth the maximum
-2-
No. 19-4134, United States v. Henderson
statutory penalty for the violations, as well as noting that the applicable United States Sentencing
Guidelines range of punishment, if the district court were to find that all the violations occurred,
would be 21–27 months.
At the hearing convened to determine whether Henderson violated the terms of his
supervised release, defense counsel announced to the district court that “Mr. Henderson would
admit as to violations 1, 2, and 3, and he is denying as to violation 4, which is the firearm and
ammunition [allegation].” After hearing sworn testimony from Henderson’s probation officer
regarding the search of the defendant’s residence, the district court noted that “the ammunition and
the handgun were found in an unoccupied room. We know that the home is owned by someone
else, and that the owner has access to the house.” Consequently, the district judge concluded that
“the Court can’t say by a preponderance of the evidence that the ammunition and firearm are, in
fact, [the defendant’s].” The district judge thus stated, “I find Mr. Henderson to be in violation of
supervised release as to violations 1, 2, and 3. I find all three of them to be a grade C violation,
and with a Criminal History Category of VI, we are looking as an advisory Sentencing Guideline[s]
range of 8 to 14 months.”
When given the opportunity to address the district court prior to imposition of sentence,
Henderson confusingly stated, “I don’t know anything about any guns or drugs being in the house,”
before announcing, “I admit I did eight, 1, 2, and 3 I did; I honestly did. I didn’t get my GED
because I was working two jobs.”1 Then, Henderson again admitted to violating the location-
monitoring term of his supervised release before claiming, “But I ain’t do that other stuff, Ms.
Gaughan. I ain’t do the other stuff.”
1
Because Henderson’s admission that “I did eight” seems incongruous and has no relevance to any other
evidence or information in the record, it is possible that the reference is a result of a transcription error.
-3-
No. 19-4134, United States v. Henderson
Based upon the information before it, the district court then sentenced Henderson “to the
custody of the Bureau of Prisons for a period of fourteen months. Upon release, Defendant is
placed on 24 months of supervised release with the same conditions.”
DISCUSSION
We have held explicitly that the full panoply of protections afforded by Federal Rule of
Criminal Procedure 11(b) when accepting a guilty plea from a criminal defendant does not apply
in supervised release proceedings. United States v. Melton, 782 F.3d 306, 311–12 (6th Cir. 2015).
Instead, revocation proceedings are governed by the provisions of Federal Rule of Criminal
Procedure 32.1(b), which provides:
Unless waived by the person, the court must hold the revocation hearing within a
reasonable time in the district having jurisdiction. The person is entitled to:
(A) written notice of the alleged violation;
(B) disclosure of the evidence against the person;
(C) an opportunity to appear, present evidence, and question any
adverse witness unless the court determines that the interest of
justice does not require the witness to appear;
(D) notice of the person’s right to retain counsel or to request that
counsel be appointed if the person cannot obtain counsel; and
(E) an opportunity to make a statement and present any information
in mitigation.
On appeal, Henderson does not dispute that he knowingly and voluntarily admitted to the
first two violations alleged by the probation officer—that he visited sites not authorized by the
district court’s location-monitoring order without obtaining the permission of the probation office
and that he failed to take actions toward obtaining his GED. Not only did defense counsel, without
objection from Henderson, advise the district court at the start of the revocation hearing that
Henderson admitted those two violations, but the defendant himself admitted in open court that
he “didn’t get [his] GED because [he] was working two jobs” and that he violated the conditions
of his house arrest to spend time with his children and to watch his children participate in athletic
-4-
No. 19-4134, United States v. Henderson
events. The district court thus did not err in finding, without taking additional evidence, that
Henderson violated at least two conditions of his supervised release.
Henderson also contends, however, that the record contains no evidence that he knew of
his Rule 32.1 rights or that anyone informed him of the possible sentence he faced for violating
the terms of his supervised release. Contrary to the defendant’s assertion, the record on appeal
establishes that Henderson’s Rule 32.1(b) rights were protected. He received written notice of the
allegations against him through receipt of the violation report, and that report detailed both the
evidence against him and the potential penalties he faced. Henderson appeared, with counsel, at
the hearing, challenged the testimony of the witness against him, and convinced the district court
that the most serious allegation could not be proven by a preponderance of the evidence. He also
was granted the opportunity to address the court directly and availed himself of that chance.
The record also establishes that Henderson was made aware on numerous occasions of the
sentence facing him should the district court determine that he indeed violated the terms of his
supervised relief. As noted, the violation report listed the applicable Guidelines sentencing range
should Henderson be found to have committed the most serious alleged violation—possession of
a firearm and ammunition—and explained in detail the rationale for arriving at that sentencing
range. Moreover, twice at the revocation hearing, before the district court imposed its sentence,
mention was made of the reduced Guidelines range to which Henderson was subject given the fact
that the firearms violation could not be established by a preponderance of the evidence. First,
while arguing that the charge regarding possession of a firearm should be dismissed, defense
counsel noted that the remaining violations were Grade C violations that would change the
potential sentencing range to 8-14 months. Then, prior to entertaining argument on sentencing,
-5-
No. 19-4134, United States v. Henderson
the district judge noted again that the appropriate sentencing range was 8-14 months. Thus, there
is no merit to either of these challenges to the district court’s sentencing decision.
Henderson nevertheless maintains that the sentence imposed upon him is improper because
he did not admit that he possessed scheduled drugs or drug paraphernalia. Thus, he argues that
the district court erred in failing to take evidence on the validity of that particular violation
allegation. As we stated in Melton, however, “a court’s acceptance of an admission to a supervised
release violation, or stated differently, a court’s acceptance of a waiver of the right to contest the
revocation of supervised release, is not governed by [the stringent requirements of] Federal Rule
of Criminal Procedure 11.” Melton, 782 F.3d at 311. “Instead, the accused’s admission or waiver
need only be knowing and voluntary under the totality of the circumstances.” Id.
Before the district court, Henderson did state, “I don’t know anything about any guns or
drugs being in the house.” He also claimed, after admitting to violating the conditions of his house
arrest, “But I ain’t do that other stuff, Ms. Gaughan. I ain’t do the other stuff.” Contradicting
those denials, however, is the defendant’s unambiguous admission that “1, 2, and 3 I did; I honestly
did.” Because Henderson obviously was conversant with the information contained in the
probation officer’s violation report, it also is telling that he raised no objection when, within the
first moments of the hearing, defense counsel responded to an inquiry from the district judge by
stating, “Your Honor, Mr. Henderson would admit as to violations 1, 2, and 3, and he is denying
as to violation 4, which is the firearm and ammunition.” Additionally, after the probation officer
testified about the search of Henderson’s home and the discovery of marijuana and a marijuana
pipe in the defendant’s bedroom and oxycodone pills in another room, the following conversation
occurred between the district court and defense counsel, again without objection or contradiction
from Henderson:
-6-
No. 19-4134, United States v. Henderson
THE COURT: Okay. So am I correct that the Defendant admits to violation
No. 1?
MR. MISIEWICZ: Yes[,] your Honor.
THE COURT: Number 2?
MR. MISIEWICZ: Yes, your Honor.
THE COURT: Number 3?
MR. MISIEWICZ: Yes, your Honor.
THE COURT: Denies number 4.
MR. MISIEWICZ: Correct.
Without question, Henderson’s on-again, off-again statements regarding his admissions of
guilt are troublesome when attempting to ascertain whether, under the totality of the circumstances,
he indeed admitted to violation 3 and waived the right to have an evidentiary hearing on that
allegation. Even if the district court erred in concluding that such an admission had been made,
however, we conclude that any such error is harmless. Pursuant to the provisions of § 7B1.1(a)(3)
of the United States Sentencing Guidelines, violations 1, 2, and 3 each would be considered a
Grade C violation. Consequently, because Henderson is a criminal-history-category VI offender,
the sentencing range for his violations, even without consideration of the drug violation, is 8-14
months. See U.S.S.G. § 7B1.4(a). Because the district court imposed a sentence within that range,
Henderson was not prejudiced by any possible error committed during the revocation hearing.
CONCLUSION
For the reasons discussed, even if the district court erred in this matter by failing to hold
an evidentiary hearing on the allegation that Henderson was in unlawful possession of scheduled
drugs, that error was harmless. Even absent a finding that the defendant violated the terms of his
supervised release by being in possession of those substances, other violations to which Henderson
readily admitted subjected him to the same additional prison sentence he received. We thus
AFFIRM the judgment of the district court.
-7-