United States v. Anderso , 369 F. App'x 494 ( 2010 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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.
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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
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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
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