UNITED STATES of America, Plaintiff-Appellee v. Keisha Leighann BOYD, Defendant-Appellant.
No. 14-2714.
United States Court of Appeals, Eighth Circuit.
Submitted: Jan. 16, 2015. Filed: July 2, 2015.
792 F.3d 916
Chris Givens, AUSA, argued, Anne E. Gardner, AUSA, On the brief, Little Rock, AR, for Appellee.
SHEPHERD, Circuit Judge.
Keisha Leighann Boyd appeared before the district court at a sentencing revocation hearing. Boyd faced revocation based on multiple technical violations of her supervised release and based on an allegation of burglary or theft. The district court determined that Boyd had committed a Grade A violation and sentenced her to 19 months imprisonment. We reverse and remand for further proceedings.
I.
Boyd was convicted of aiding and abetting the distribution of methamphetamine. After one unsuccessful attempt at supervised release that resulted in additional prison time, Boyd was again placed on supervised release in January 2014. In May 2014, the government sought to revoke Boyd’s supervised release. At the revocation hearing, Jay Hudson, Boyd’s supervising probation officer, testified he had been assigned only in May 2014 to supervise Boyd after Michelle Sims, Boyd’s previous supervising probation officer, retired.
Officer Hudson began testifying about Boyd’s alleged violations of supervised release. Boyd objected under
Jonesboro Police Officer Brandon King testified that Jonesboro police officers conducted a traffic stop of Boyd’s vehicle based on a tip Officer King had received indicating Boyd was involved with stolen property. During the stop, Boyd admitted to Officer King that there was stolen property in the vehicle. She also admitted knowing additional stolen property was at a local motel. Boyd escorted the officers to the motel where they recovered additional stolen property. Boyd was charged in state court with burglary and theft of property.
After hearing Officer King’s testimony, the district court determined Boyd’s personal knowledge of the stolen property “would indicate that she was involved with it in some way.” (Revoc. Tr. at 27.) After hearing arguments from the parties concerning whether the government had proven burglary or just theft, the district court found that Boyd had committed a Grade A violation of her supervised release, which has a recommended revocation range of 15–21 months imprisonment. See
Boyd appeals, arguing (1) the district court violated her confrontation rights when it permitted Officer Hudson to testify in the place of Officer Sims without first determining that Officer Sims was unavailable, and (2) the district court abused its discretion in determining Boyd committed a Grade A violation when there was no evidence she had committed a burglary
II.
The district court has the discretion to revoke supervised release if the government proves by a preponderance of the evidence that the defendant violated a condition of supervised release.
A.
First, we consider Boyd’s argument that the district court erred in allowing Officer Hudson to testify in substitution for Office Sims, who had retired, thus depriving Boyd of her right to question adverse witnesses. A supervised release defendant is not entitled to a trial during a revocation hearing, the rules of evidence are inapplicable, and the government has a lower burden of proof. See United States v. Johnson, 710 F.3d 784, 788 (8th Cir. 2013). However, “[a] defendant is entitled to ‘an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear.’” Id. (quoting
First, the court should assess the explanation the government offers of why confrontation is undesirable or impractical. Second, a trial court should consider the reliability of the evidence which the government offers in place of live testimony. Ultimately, if the government neither shows that presenting live testimony would be unreasonably burdensome nor offers hearsay evidence that bears indicia of reliability, the probationer is entitled to confrontation.
Johnson, 710 F.3d at 789 (citations omitted) (quoting Bell, 785 F.2d at 643).
In Johnson, we reversed the district court when it allowed a probation officer to read a police report into the record, reasoning “the lack of an explanation for a witness’s unavailability against the reliability of the police report” balanced in favor
This case presents a closer question than the one we addressed in Johnson. First, the government does offer an explanation for Officer Sims’s absence—she had retired from the probation office. While retirement alone should not always excuse an officer from testifying in a revocation hearing, it does bear on the officer’s availability. Second, Officer Hudson’s testimony was based on a probation document produced by his agency, whereas in Johnson, the probation officer was seeking to testify about a police report prepared by officers of a separate law enforcement agency. See id. at 786. The testimony here concerned a document designed to report on the status of a supervised release defendant, and Officer Hudson is personally familiar with the processes for creating that document. And as Officer Hudson now serves as Boyd’s supervising probation officer, the reliability of his testimony is more certain than that of a probation officer testifying about a police report created by another agency and designed to report on possible criminal activity. While the court should have inquired further about Officer Sims’s present residence, whereabouts, and availability to testify, we cannot say the court abused its discretion when it allowed Officer Hudson to testify in substitution for Officer Sims.
B.
Next, we address Boyd’s argument that the government failed to present sufficient evidence to support the district court’s determination that she committed a Grade A violation of her supervised release. The Sentencing Guidelines classify supervised release violations as one of three “grades”: A, B, or C. See
“‘[T]he basic elements’ of generic burglary” are “‘unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.’” Descamps v. United States, 570 U.S. 254, 258, 133 S. Ct. 2276, 2283, 186 L. Ed. 2d 438 (2013) (quoting Taylor v. United States, 495 U.S. 575, 599, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990)). Under Arkansas law, “[a] person commits residential burglary if he or she enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment.”
III.
Accordingly, we reverse the district court’s finding of a supervised release violation and remand this matter to the district court. On remand, the record as it pertains to a claim of burglary may not be expanded because the government knew of its obligation to present sufficient evidence of burglary and inexcusably failed to comply with this obligation. See Johnson, 710 F.3d at 790. Because the district court prohibited the government from presenting evidence as to the value of the stolen property, the government may expand the record on that issue.