United States v. Shaun D. Porchia , 180 F. App'x 596 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-3253
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United States of America, *
*
Appellee, * Appeal From the United States
* District Court for the
v. * Western District of Missouri.
*
Shaun Deangelo Porchia, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 14, 2006
Filed: March 28, 2006
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Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.
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PER CURIAM.
Shaun Deangelo Porchia appeals from the 24-month sentence imposed
following a revocation hearing on violations of his supervised release. He argues that
the district court abused its discretion by allowing a probation officer to testify that
Porchia had used marijuana, rather than require a lab technician to testify as to
positive lab test results. He further contends that his sentence is unreasonably long.
We affirm.
Although the Federal Rules of Evidence do not apply to revocation
proceedings, “probationers and parolees enjoy due process and statutory protections
in the context of their revocation hearings.” United States v. Redd, 318 F.3d 778, 783
(8th Cir. 2003) (citing Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972)). In United
States v. Bell, 785 F.2d 640, 642-43 (8th Cir. 1986), this court set forth the balancing
test that district courts are to employ when determining the admissibility of hearsay
testimony offered by the government in revocation hearings. The court is to balance
the probationer’s right of confrontation against the government’s reasons for
proffering the hearsay. Id. at 642. Factors which aid in this analysis are the
government’s stated reason for not having the witness testify in person, and whether
the evidence is of a type generally reliable. Id. at 643. Although the district court is
generally required to perform a Bell balancing test in the first instance, we may also
perform that task where the record is sufficient to allow our informed analysis.
United States v. Martin, 382 F.3d 840, 844 (8th Cir. 2004).
Having reviewed the record in this case, we find no error in the admission of
the complained-of hearsay statement. A probation officer familiar with Porchia’s
circumstances testified that Porchia had tested positive on a number of occasions for
the presence of marijuana on a “sweat patch” that he was required to wear. Porchia
complains that he was entitled to confront and cross-examine someone affiliated with
the private laboratory located in Texas that performed the test. Given the reliability
of drug-test evidence, however, we find that the questionable value in requiring such
testimony is outweighed by the burden to the government in producing such a
witness. Accord Redd, 318 F.3d at 784.
Porchia also argues that the 24-month sentence imposed was unreasonable,
directing us to the fact that the guidelines suggested a range of six to twelve months.
See USSG § 7B1.4(a), p.s. (revocation table). We determine whether a revocation
sentence was reasonable in light of the factors referenced in 18 U.S.C. § 3583(e),
United States v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005), and review a district
court’s decision to impose a sentence longer than suggested by the revocation table
for an abuse of discretion, United States v. White Face, 383 F.3d 733, 737 (8th Cir.
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2004). We find no error here; Porchia had been before the court at least twice before
on revocation hearings, and as recently as two months before the instant offenses had
been allowed to continue on supervised release despite similar violations. Moreover,
Porchia’s initial sentence of five years of probation reflected a downward departure,
and Porchia had been thoroughly and continually forewarned by the court that it
would not take Porchia’s violations lightly. We cannot fault the district court for
following through on its pledge.
For the reasons stated above, we affirm.
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