US v. Rodriguez Grier

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:99-cr-00161-FDW-1. Copies to all parties and the district court/agency. [998526946] [09-5098]

Case: 09-5098

Document: 35

Date Filed: 02/17/2011

Page: 1

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-5098

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
RODRIGUEZ CLINTONIAN GRIER,
Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
District Judge. (3:99-cr-00161-FDW-1)

Submitted:

February 2, 2011

Decided:

February 17, 2011

Before DAVIS and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Tony E. Rollman, Asheville, North Carolina, for Appellant. Amy
Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, Edward R. Ryan, Assistant United States
Attorney, Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

Case: 09-5098

Document: 35

Date Filed: 02/17/2011

Page: 2

PER CURIAM:
Rodriguez

Clintonian

Grier

appeals

the

district

court’s judgment revoking his supervised release and sentencing
him to twelve months and one day of imprisonment followed by
four years of supervised release.

Grier’s attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal, but
questioning
hearsay

whether

evidence

hearing.

the

district

during

the

court

revocation

erred
of

in

considering

supervised

release

Grier was notified of his right to file a pro se

supplemental brief but has not done so.
to file a brief.

The Government declined

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

district

(2000).
court’s

The

conclusion

reviewed for clear error.
1017,

1019

(8th

factual

Cir.

determinations

that

a

violation

informing

the

occurred

are

United States v. Carothers, 337 F.3d

2003).

A

district

court’s

evidentiary

rulings are reviewed for abuse of discretion and harmless error.

2

Case: 09-5098

Document: 35

Date Filed: 02/17/2011

Page: 3

United States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009),
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, 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).
should

apply

considering
witnesses”

a

balancing

the
and

test

releasee’s
should

Under this rule, “the court
at

the

asserted

“balance

the

hearing

right

to

person’s

itself

when

cross-examine

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

certain

hearsay

evidence

concerning

halfway

house.

In

so,

assess,

under

Rule

doing

the

32.1(b)(2)(C),

over

Grier’s
district

whether

evidence was in the interest of justice.

objection

behavior
court

at

failed

admission

of

a
to
the

However, our review of

the record convinces us that admission of the hearsay evidence
for

the

purposes

of

assessing

charged violations was harmless.
3

whether

Grier

committed

the

The district court had ample

Case: 09-5098

grounds

for

Document: 35

revoking

Date Filed: 02/17/2011

Grier’s

supervised

Page: 4

release,

including

Grier’s own admissions and violations directly observed by the
probation

officer,

who

cross-examination.

did

testify

and

was

available

for

Furthermore, admission of hearsay evidence

for sentencing purposes is not improper and, in any event, the
district

court’s

thorough

explanation

for

the

imposed did not reference the disputed evidence.

sentence

it

Accordingly,

we find no reversible error.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal.

We

therefore

affirm

the

district

court’s

judgment.

This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States
for further review.

If the client requests that a petition be

filed,

believes

but

counsel

that

such

a

petition

would

be

frivolous, then counsel may move in this court for leave to
withdraw from representation.

Counsel’s motion must state that

a copy thereof was served on the client.

Finally, 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

4