United States v. Anderso

369 F. App'x 494

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 12, 2010
• Docket: 096513
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-6513

UNITED STATES OF AMERICA,

Petitioner - Appellee,

v.

JEFFREY ANDERSON,

Respondent - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. W. Earl Britt, Senior District Judge. (5:07-hc-02189-BR)

Submitted: February 19, 2010 Decided: March 12, 2010

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

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Jane E. Pearce, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Assistant United States Attorney, David T. Huband, Special Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Jeffrey Anderson, a federal inmate, appeals the

district court’s order revoking his conditional release and

remanding him to the custody of the Attorney General pursuant to

18 U.S.C. § 4246(f) (2006). He contends that the revocation

decision was based on hearsay evidence and that the evidence was

insufficient to support the revocation of his conditional

release. Because Anderson failed to raise either of these

claims in the district court, we review the district court’s

revocation decision for plain error. See Fed. R. Crim. P.

52(b); United States v. Olano, 507 U.S. 725, 732 (1993).

Finding no error, we affirm.

Anderson was committed to the custody and care of the

Attorney General pursuant to 18 U.S.C. § 4246(d) (2006) for

treatment in the Federal Medical Center in Butner, North

Carolina (“FMC Butner”), after the district court found by clear

and convincing evidence that Anderson was “presently suffering

from a mental disease or defect as a result of which his release

would create a substantial risk of bodily injury to another

person or serious damage to the property of another.” See 18

U.S.C. § 4246(a) (2006). Based on the Warden of FMC Butner’s

certification that Anderson had recovered to such an extent that

his conditional release under a regimen of care and treatment

would no longer create a substantial risk of bodily injury to

2 another person or serious damage to the property of another,

the district court ordered Anderson’s release on a conditional

release plan.

Several months after Anderson’s conditional release,

the United States Probation Office notified the district court

that Anderson had failed to comply with the terms of his

conditional release. The Government moved to revoke Anderson’s

conditional release. At the revocation hearing, the Government

introduced into evidence without objection a letter from

Anderson’s probation officer detailing numerous violations of

his conditional release. Seven arrest records referred to in

the letter were also admitted without objection. Finding

Anderson violated the terms and conditions of his conditional

release and that his continued release would create a

substantial risk of bodily injury to another person or serious

damage to the property of another, the district court revoked

Anderson’s conditional release and remanded him to the custody

of the Attorney General. Anderson timely appealed, contending

the district court erred in relying upon hearsay and double

hearsay evidence contained in the probation officer’s report.

Anderson further asserted the district court failed to determine

whether Anderson’s continued release would pose a risk to

society.

3 We may correct error that is both plain and

prejudicial if such error “substantially affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Olano,

507 U.S. at 732. We find the hearsay evidence contained in the

probation officer’s letter bore several substantial indicia of

reliability. See United States v. McCallum, 677 F.2d 1024, 1026

(4th Cir. 1982) (allowing admission of demonstrably reliable

hearsay evidence in revocation proceeding). The probation

officer’s letter exhibited reliability as an official document

prepared and presented in furtherance of her statutory and

court-ordered duties as an officer of the court to supervise

Anderson’s conditional release. See 18 U.S.C. § 3603(8)(A), (B)

(2006). Furthermore, the letter was reasonably factually

detailed and was internally and externally corroborated by

Anderson’s own statements, statements by the director of

Anderson’s residential facility, arrest and conviction reports,

and at least one lab report. Consequently, we find no plain

error in the admission of the probation officer’s letter.

We further find no plain error in the district court’s

determination that Anderson’s continued release would pose a

substantial risk of bodily injury to another or serious damage

to the property of another. The evidence showed that Anderson

verbally threatened the staff and residents at his residential

facility, was arrested twice and convicted once for disturbing

4 the peace, was arrested for public intoxication, profane

swearing, open container, and littering, missed appointments

with his medical provider, failed to comply with his medication

regimen, consumed alcohol and drugs, and was allegedly stabbed

and exhibited suicidal ideations for which he was hospitalized.

According to the probation officer, Anderson exhibited

escalating non-compliant behavior and adjusted poorly to

supervision. Furthermore, the probation officer opined

Anderson’s conditional release potentially placed “the community

in a greater risk of harm.”

Finding no plain error in the district court's

decision to revoke Anderson’s conditional release and remand him

to the custody of the Attorney General for care and treatment,

we affirm the district court’s revocation order. 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