US v. Marvin Outing

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:06-cr-00102-FDW-1. Copies to all parties and the district court/agency. [999813444]. [15-4466]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4466

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARVIN FITZGERALD OUTING,
Defendant - Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Frank D. Whitney,
Chief District Judge. (3:06-cr-00102-FDW-1)

Submitted:

April 26, 2016

Decided:

May 5, 2016

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Samuel B. Winthrop, WINTHROP & WINTRHOP, Statesville, North
Carolina, for Appellant. Jill Westmoreland Rose, United States
Attorney, Sanjeev Bhasker, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marvin Fitzgerald Outing pleaded guilty to possession of a
firearm

by

(2012).

a

felon,

in

violation

of

18

U.S.C.

§ 922(g)(1)

The district court sentenced Outing to 118 months of

imprisonment,

followed

by

3

years

of

supervised

release.

Following Outing’s release from incarceration, he was charged in
state court with assault on a female and communicating threats,
for two separate incidents.
supervised

release

and

The district court revoked Outing’s

sentenced

imprisonment, and he now appeals.
On

appeal,

Outing

first

Outing

to

24

months

of

Finding no error, we affirm.

argues

that

the

district

court

abused its discretion in admitting the hearsay statements of the
victim

where

hearing.

the

victim

did

not

testify

at

the

revocation

“We review a district court’s evidentiary ruling in a

revocation hearing for abuse of discretion.”

United States v.

Ferguson, 752 F.3d 613, 616 (4th Cir. 2014).

Pursuant to Fed.

R.

Crim.

P.

32.1(b)(2)(C),

a

defendant

in

a

revocation

proceeding is entitled to an opportunity to question adverse
witnesses

unless

the

court

determines

that

the

justice does not require the witness to appear.
32.1(b)(1)(C)

specifically

requires

that,

prior

interest
Id.
to

of

“Rule

admitting

hearsay evidence in a revocation hearing, the district court
must balance the releasee’s interest in confronting an adverse
witness

against

any

proffered

good
2

cause

for

denying

such

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confrontation.”

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United States v. Doswell, 670 F.3d 526, 530

(4th Cir. 2012).

While reliability is no longer the test for

admissibility, it remains “a critical factor in the balancing
test under Rule 32.1.”
reliable

and

the

Id. at 531.

Government

“If hearsay evidence is

has

offered

a

satisfactory

explanation for not producing the adverse witness, the hearsay
evidence will likely be admissible under Rule 32.1.”
have

thoroughly

reviewed

the

record

and

We

that

conclude

Id.

the

district court did not abuse its discretion in admitting the
victim’s statements.
Outing
unreasonable.

also

argues

that

the

sentence

is

plainly

We review a sentence imposed as a result of a

supervised release violation to determine whether the sentence
is plainly unreasonable.
437 (4th Cir. 2006).

United States v. Crudup, 461 F.3d 433,
The first step in this analysis is a

determination of whether the sentence is unreasonable; in making
this

determination,

we

follow

the

procedural

and

substantive

considerations employed in reviewing original sentences.

Id. at

438.

policy

Although

a

district

court

must

consider

the

statements in Chapter Seven of the Sentencing Guidelines along
with

the

statutory

factors,

“the

court

ultimately

has

broad

discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum.”
439 (internal quotation marks omitted).
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Crudup, 461 F.3d at

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If

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sentence

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imposed

after

a

revocation

is

not

unreasonable, we will not proceed to the second prong of the
analysis — whether the sentence is plainly unreasonable.
438-39.

Id. at

We have reviewed the record and conclude that Outing

has failed to demonstrate that the sentence is procedurally or
substantively

unreasonable.

It

follows,

therefore,

that

the

sentence is not plainly unreasonable.
Accordingly, we affirm the judgment of the district court.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid in the decisional process.

AFFIRMED

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