United States v. Cory Callen

• Court: Court of Appeals for the Fourth Circuit
• Decided: June 21, 2021
• Docket: 20-4527
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4527

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CORY LEE CALLEN,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at Bluefield. David A. Faber, Senior District Judge. (1:17-cr-00152-1)

Submitted: June 10, 2021 Decided: June 21, 2021

Before MOTZ, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William S. Winfrey, II, Princeton, West Virginia, for Appellant. Michael B. Stuart, United States Attorney, Timothy D. Boggess, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Cory Lee Callen pleaded guilty to possession of a firearm as a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced Callen to 37

months of imprisonment, followed by 3 years of supervised release. Following Callen’s

release from incarceration, he was charged in state court with strangulation, domestic

violence, and grand larceny. The district court revoked Callen’s supervised release and

sentenced Callen to 24 months of imprisonment. Callen filed a motion for reconsideration,

which the district court denied. On appeal, Callen challenges the district court’s admission

of hearsay testimony at the revocation hearing. We affirm.

“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 interest of

justice does not require the witness to appear. Id. “Rule 32.1(b)(2)(C) specifically requires

that, prior to 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

cause for denying such confrontation.” 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.” Id. at 531. “If hearsay evidence is reliable

and the [g]overnment has offered a satisfactory explanation for not producing the adverse

witness, the hearsay evidence will likely be admissible under Rule 32.1.” Id.

2 We have thoroughly reviewed the record and conclude that the district court did not

abuse its discretion in admitting the victim’s statements. The court found that the

statements were reliable because they were made while under the stress of a startling event.

In addition, as the Government explained, although it worked with local law enforcement

to try to locate the victim for several weeks, the victim could not be found, so the

Government could not call her to testify.

Accordingly, we affirm the district court’s orders. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED