US v. David Drayton

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:94-cr-00126-MOC-7 Copies to all parties and the district court/agency. [999730797].. [15-4042]

Appeal: 15-4042

Doc: 45

Filed: 01/06/2016

Pg: 1 of 5

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Appeal: 15-4042

Doc: 45

Filed: 01/06/2016

Pg: 2 of 5

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).
violation

of

a

The district court need only find a

condition

of

preponderance of the evidence.
Copley, 978 F.2d at 831.
.

simply

requires

the

supervised

release

by

a

18 U.S.C. § 3583(e)(3) (2012);

“[A] preponderance of the evidence . .
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

inducement

of
of

predisposition

entrapment
the
to

crime
engage

“has
and
in

two
(2)

the
2

elements:
the

(1)

government

defendant’s

criminal

conduct.”

lack

of

United

Appeal: 15-4042

Doc: 45

Filed: 01/06/2016

Pg: 3 of 5

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

induced him to commit the crime.”
F.2d 176, 179 (4th Cir. 1992).

that

the

government

United States v. Jones, 976

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

district

court

did

not

met

its

burden

government
Drayton

transaction

was

conspiracy

with

clearly
of

an
err

in

on

supervised

conviction

at

the

time

release
he

agent,

the

that

the

finding

demonstrating

recently

undercover agent.

undercover

predisposition.
for

sold

a

cocaine

cocaine

to

an

Further, the circumstances of the violation,

in which Drayton entered the agent’s car on his own initiative
without

the

offered

to

confidential
sell

the

agent

informant,
even

more

discussed
cocaine,

pricing,
show

that

and
the

decision by Drayton to commit the offense was his own preference
and not the product of government persuasion.
v. Osborne, 935 F.2d 32, 38 (4th Cir. 1991).

3

See United States

Appeal: 15-4042

Doc: 45

Filed: 01/06/2016

Pg: 4 of 5

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

balancing test under Fed. R. Crim. P. 32.1.

the

requisite

The decision to

admit hearsay evidence at a revocation hearing is reviewed for
abuse of discretion.
529

(4th

Cir.

United States v. Doswell, 670 F.3d 526,

2012).

Evidentiary

harmless error review.
292 (4th Cir. 2010).

rulings

are

subject

to

United States v. Johnson, 617 F.3d 286,
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

showing
testimony

as

noted

above,

predisposition.
describing

the

there

Thus
jail

was

even
call

ample

without

other
the

statements,

evidence

challenged

the

evidence

supported the court’s rejection of Drayton’s entrapment defense
and its finding that he violated the terms of his supervised
release.

4

Appeal: 15-4042

Doc: 45

Filed: 01/06/2016

Pg: 5 of 5

Accordingly, we affirm the district court’s judgment.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

5