US v. David Drayton


UNPUBLISHED PER CURIAM OPINION filed.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]

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Appeal: 15-4042 Doc: 45 Filed: 01/06/2016 Pg: 1 of 5 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4042 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID LEE DRAYTON, a/k/a Diamond,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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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

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