                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4675


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JOSHUA LEE HAMILTON,

                    Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. James R. Spencer, Senior District Judge. (3:05-cr-00136-JRS-1)


Submitted: August 21, 2017                                        Decided: August 29, 2017


Before MOTZ and KEENAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Stephanie S. Henkle, LIBERTY & JUSTICE LAW FIRM, P.L.L.C., Richmond, Virginia,
for Appellant. Dana J. Boente, United States Attorney, Peter S. Duffey, Assistant United
States Attorney, Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Joshua Lee Hamilton appeals the district court’s judgment revoking his term of

supervised release and sentencing him to 24 months’ imprisonment. The district court

determined that Hamilton had violated his conditions of supervised release by

(1) committing a crime, namely, possession with intent to distribute a Schedule I/II

substance, possession of a Schedule I/II substance, possession of marijuana, and resisting

arrest; and (2) associating with felons without permission.

       Counsel initially filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967), stating that there are no meritorious issues for appeal, but questioning whether the

sentence was procedurally unreasonable.          After conducting our review pursuant to

Anders, we sought supplemental briefing on two issues: (1) whether the district court

plainly erred in admitting a laboratory report without the Government’s showing of good

cause for the forensic witness’ unavailability; and (2) whether the district court erred in

failing adequately to explain its chosen sentence, and if so, whether this error was

harmless. Having reviewed the parties’ arguments on these issues, we affirm.

       We generally review a district court’s judgment revoking supervised release for

abuse of discretion and review its factual findings for clear error. United States v.

Padgett, 788 F.3d 370, 373 (4th Cir. 2015). The district court need find a violation of a

condition of supervised release by only a preponderance of the evidence. 18 U.S.C.

§ 3583(e)(3) (2012); Padgett, 788 F.3d at 374.

       We conclude that the district court did not abuse its discretion in revoking

Hamilton’s supervised release. Even without the contested laboratory report and drug

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violations, the district court reasonably found Hamilton’s other violations—resisting

arrest and associating with felons—by a preponderance of the evidence, as they were

supported by the testimony of the state trooper and the probation officer during the

revocation hearing.

       We therefore analyze the admission of the laboratory report in the context of

Hamilton’s sentence. Hamilton contends that the district court plainly erred in admitting

the report without the Government’s explanation of the forensic witness’ unavailability,

in violation of Fed. R. Crim. P. 32.1(b)(2)(C).

       Because Hamilton failed to object to the admission of the laboratory report below,

he must show plain error in order to obtain reversal. United States v. Obey, 790 F.3d 545,

547 (4th Cir. 2015). To establish plain error, Hamilton must demonstrate “that an error

occurred, that it was plain, and that it affected his substantial rights.” Id. We have

discretion to “correct the error only if it seriously affects the fairness, integrity or public

reputation of judicial proceedings.” Id. (brackets and internal quotation marks omitted).

       Under Fed. R. Crim. P. 32.1(b)(2)(C), a defendant has a due process right to

“question any adverse witness unless the court determines that the interest of justice does

not require the witness to appear.” “[T]he district court must balance the releasee’s

interest in confronting an adverse witness against any proffered good cause for denying

such confrontation.” United States v. Doswell, 670 F.3d 526, 530 (4th Cir. 2012). “[T]he

reliability of the [hearsay] evidence is a critical factor in the balancing test under Rule

32.1,” but not the beginning and end of the analysis. United States v. Ferguson, 752 F.3d

613, 617 (4th Cir. 2014). “[U]nless the government makes a showing of good cause for

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why the relevant witness is unavailable, hearsay evidence is inadmissible at revocation

hearings.” Id.; Doswell, 670 F.3d at 530-31.

       Here, the district court’s admission of the laboratory report runs afoul of the

requirements we set forth in Doswell and Ferguson. See Obey, 790 F.3d at 550. The

error also may have affected Hamilton’s substantial rights, because the district court did

not specify what evidence it relied on to determine that Hamilton committed the drug

violations. See Ferguson, 752 F.3d at 617-20; Doswell, 670 F.3d at 531. But Hamilton’s

admission that he was convicted of the drug violations in state court provided sufficient

grounds to establish the drug violations on its own. Further, because Hamilton admitted

to the state drug convictions, the admission at the revocation hearing of the laboratory

report did not “seriously affect the fairness, integrity or public reputation of judicial

proceedings.”   See Obey, 790 F.3d at 547 (alteration and internal quotation marks

omitted). Therefore, we perceive no reversible error in the admission of the report.

       Hamilton next argues that the district court procedurally erred by failing to provide

an individualized assessment and explanation of his sentence or address his arguments for

a concurrent sentence.

       Because Hamilton argued for a concurrent sentence below, he preserved his claim

that the district court erred in failing to address his arguments and provide a proper

explanation for his sentence. United States v. Lynn, 592 F.3d 572, 578 (4th Cir. 2010).

Preserved claims are reviewed for abuse of discretion, and if we discern abuse, reversal is

required unless “the party defending the ruling below” shows that “the error was

harmless.” Id. at 585 (internal quotation marks omitted).

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       “A district court has broad discretion when imposing a sentence upon revocation

of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We

will affirm a revocation sentence that “is within the applicable statutory range and is not

plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006)

(citation omitted).   We consider whether the sentence imposed is procedurally and

substantively unreasonable, applying the same general considerations employed in our

review of original criminal sentences. Id. at 438.

       A revocation sentence is procedurally reasonable if the district court considered

the policy statements contained in Chapter Seven of the Sentencing Guidelines and the 18

U.S.C. § 3553(a) (2012) factors applicable to revocation sentences. Id. The district court

must also provide a statement of reasons for the sentence imposed. United States v.

Thompson, 595 F.3d 544, 547 (4th Cir. 2010). “Regardless of whether the district court

imposes an above, below, or within-Guidelines sentence, it must place on the record an

‘individualized assessment’ based on the particular facts of the case before it.” United

States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall v. United States, 552

U.S. 38, 50 (2007)). “A court need not be as detailed or specific when imposing a

revocation sentence as it must be when imposing a post-conviction sentence, but it still

must provide a statement of reasons for the sentence imposed.” Thompson, 595 F.3d at

547 (internal quotation marks omitted). Such an explanation is necessary “to promote the

perception of fair sentencing” and to permit “meaningful appellate review.” Gall, 552

U.S. at 50; accord Carter, 564 F.3d at 329-30. “[A] district court may not simply impose

sentence without giving any indication of its reasons for doing so.” Thompson, 595 F.3d

                                             5
at 547. Otherwise, a court “could effectively thwart appellate review of any within-range

revocation sentence[].” Id.

       Here, the district court has provided us with little explanation on which to base our

appellate review on this point. See Gall, 552 U.S. at 50. However, the district court did

make findings as to the violations themselves that indicated its view of Hamilton’s breach

of the court’s trust. Further, the statutory maximum sentence imposed is below the

otherwise applicable policy statement range.      We conclude that the record contains

sufficient material to find the sentence procedurally reasonable. The within-policy-range

sentence is presumptively substantively reasonable, Padgett, 788 F.3d at 373, and that

presumption has not been rebutted.

       Consequently, we affirm the judgment below. In accordance with Anders, we

have reviewed the record and found no meritorious issues for appeal. This court requires

that counsel inform Hamilton in writing of the right to petition the Supreme Court of the

United States for further review. If Hamilton requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may move in this court for

leave to withdraw from representation. Counsel’s motion must state that a copy thereof

was served on Hamilton. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument

would not aid the decisional process. The mandate shall issue forthwith.

                                                                               AFFIRMED




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