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UNPUBLISHED PER CURIAM OPINION filed.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]
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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
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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
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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.
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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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