United States v. Cedric Wilson ( 2011 )

FILED
NOT FOR PUBLICATION JAN 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50150
Plaintiff - Appellee, D.C. No. 8:98-cr-00159-ABC-1
v.
MEMORANDUM *
CEDRIC DERWON WILSON, AKA
Cedrick Dewon Wilson, AKA Dog,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted January 10, 2011
Pasadena, California
Before: O’SCANNLAIN, W. FLETCHER, and CLIFTON, Circuit Judges.
Cedric Wilson appeals his supervised release revocation and sentence. As
the facts are known to the parties, we repeat them here only as necessary to explain
our decision.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Wilson first challenges the district court’s finding that he violated his
supervised release conditions by possessing a firearm. He argues that the evidence
was insufficient to establish possession and that the district court violated his Fifth
Amendment right to due process by considering a police report submitted by the
government, because the report contained facts that were not part of the stipulation.
The stipulation did not provide that the court could not consider any facts beyond
the stipulation, and the court did not agree to any such limitation on what it could
consider. Moreover, although the police report constituted hearsay evidence, the
Federal Rules of Evidence, including the rules limiting hearsay, do not apply at
revocation proceedings. See United States v. Verduzco, 330 F.3d 1182, 1185 (9th
Cir. 2003). Because Wilson waived his right to an evidentiary hearing and did not
object to the court’s consideration of the police report, the court did not violate due
process when it considered information contained in the police report. See United
States v. Perez, 526 F.3d 543, 548 (9th Cir. 2008). In light of the facts contained in
the stipulation and the police report, we conclude that there was sufficient evidence
to support the district court’s finding that Wilson constructively possessed a
firearm in violation of his supervised release conditions. See 18 U.S.C.
§ 3583(e)(3); Perez, 526 F.3d at 547; United States v. Gutierrez, 995 F.2d 169, 171
(9th Cir. 1993) (holding that “to prove constructive, the government must prove a
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sufficient connection between the defendant and the contraband to support the
inference that the defendant exercised dominion and control over the firearms”).
Wilson also argues that the district court abused its discretion by imposing
an unreasonable sentence of 24 months. However, the district court correctly
calculated the Guidelines range of 18–24 months and explained the reasons
supporting the Guidelines sentence. See 18 U.S.C. § 3553(c). The court did not
abuse its discretion by declining to address specifically each mitigating factor
Wilson referenced at the sentencing hearing, or by failing to mention every factor
listed in 18 U.S.C. § 3553(a). See 18 U.S.C. § 3583(e); United States v. Carty, 520
F.3d 984, 991–94 (9th Cir. 2008). We conclude that a 24-month sentence is not
substantively unreasonable. See Carty, 520 F.3d at 988.
AFFIRMED.
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