United States v. Victor Fourstar, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2021
• Docket: 19-30289
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 19-30289 20-30157 Plaintiff-Appellee, D.C. No. 4:02-cr-00052-DLC-1 v.

VICTOR CHARLES FOURSTAR, Jr., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, District Judge, Presiding

Submitted May 18, 2021**

Before: CANBY, FRIEDLAND, and VANDYKE, Circuit Judges.

In Appeal No. 19-30289, Victor Charles Fourstar, Jr., appeals from the

district court’s order denying his request for a recommendation to be placed in a

residential reentry center (“RRC”). In Appeal No. 20-30157, Fourstar appeals

from the district court’s July 21, 2020, judgment revoking supervised release. We

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). dismiss Appeal No. 19-30289 as moot. We have jurisdiction over Appeal No. 20-

30157 under 28 U.S.C. § 1291, and we affirm.

In Appeal No. 19-30289, the sole issue presented is whether the district

court abused its discretion in denying Fourstar’s request for a recommendation to

be placed in an RRC for the remainder of his sentence. Because Fourstar has

finished serving that sentence, we can provide no effective relief as to the claim

raised, and we dismiss this appeal as moot. See Spencer v. Kemna, 523 U.S. 1, 14

(1998).

In Appeal No. 20-30157, Fourstar contends that the district court violated his

due process right to confrontation by admitting hearsay evidence at his fifth

revocation hearing without conducting the balancing test required by Federal Rule

of Criminal Procedure 32.1(b)(2)(C). Reviewing de novo, we conclude that any

error was harmless. See United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008).

Fourstar does not contest the accuracy or reliability of the challenged documents,

nor did he offer any contrary evidence. See United States v. Walker, 117 F.3d 417,

420-21 (9th Cir. 1997).1 Moreover, the district court’s decision to revoke

supervised release is also supported by two additional violations that did not rely

1 Fourstar urges us to overrule Walker and hold that the Federal Rules of Evidence apply at supervised release revocation proceedings. Even if we were inclined to do so, as a three-judge panel, we cannot. See Miller v. Gammie, 335 F.3d 889, 899- 900 (9th Cir. 2003) (en banc).

2 19-30289 & 20-30157 upon the challenged documents. See United States v. Daniel, 209 F.3d 1091, 1094

(9th Cir. 2000) (“Supervised release can be revoked based upon only one

violation.”).

APPEAL NO. 19-30289: DISMISSED.

APPEAL NO. 20-30157: AFFIRMED.

3 19-30289 & 20-30157