                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4294


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ERIC WAYNE ZUSPAN,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.    Irene M. Keeley,
District Judge. (1:09-cr-00081-IMK-JSK-1)


Submitted:   November 30, 2015            Decided:   January 6, 2016


Before NIEMEYER, SHEDD, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Tracy Weese, Shepherdstown, West Virginia, for Appellant.
William J. Ihlenfeld, II, United States Attorney, Andrew R.
Cogar, Assistant United States Attorney, Clarksburg, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Eric       Wayne    Zuspan       appeals       the    district        court’s       judgment

revoking his supervised release.                          On appeal, he contends that

the    district       court          abused   its      discretion         when    it       admitted

hearsay evidence at the revocation hearing and in revoking his

supervised release.              We affirm.

       At     a     revocation         hearing,       a     defendant        is   entitled       to

“question any adverse witness unless the court determines that

the interest of justice does not require the witness to appear.”

Fed.   R.     Crim.       P.    32.1(b)(2)(C).              “[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.”

United States v. Ferguson, 752 F.3d 613, 617 (4th Cir. 2014)

(internal         quotation          marks    omitted).           However,        “unless       the

government makes a showing of good cause for why the relevant

witness      is     unavailable,           hearsay     evidence         is   inadmissible       at

revocation hearings.”                Id.

       The    decision          to    admit   hearsay          evidence      at   a    revocation

hearing is reviewed for an abuse of discretion.                                   Doswell, 670

F.3d at 529.          Evidentiary rulings are subject to harmless error

review.       United States v. Johnson, 617 F.3d 286, 292 (4th Cir.

                                                  2
2010).     In reviewing the admission of hearsay in a revocation

hearing,   “the     proper    harmlessness         test       must    ensure       that    the

error had no substantial and injurious effect or influence on

the   outcome,      not   whether     the       error    was     harmless         beyond    a

reasonable     doubt.”        Ferguson,          752    F.3d     at        618     (internal

quotation marks omitted).

      Zuspan   first      argues    that    the       district       court       abused    its

discretion when it admitted the recorded interview of a witness,

contending the Government did not offer good cause for failing

to present the witness to testify.                    We conclude that any error

did not have a substantial and injurious effect on the outcome.

The district court did not rely on the witness’ statements in

determining      that     Zuspan     violated           the     conditions          of     his

supervised     release.            Moreover,       because           we    conclude        the

Government’s       evidence   was     sufficient          —    without       the    hearsay

statements — to determine that Zuspan violated the conditions of

his supervised release by participating in a scheme to defraud a

retail store, this claim warrants no relief.                         Ferguson, 752 F.3d

at 617.

      Zuspan next challenges the district court’s admission of

testimony about the results of a store’s internal investigation

—specifically, the finding that items were not scanned at the

register and the total cost of the unscanned items.                                 Because

Zuspan    failed    to    object    below,       we     review       for    plain    error.

                                            3
United States v. Obey, 790 F.3d 545, 547 (4th Cir. 2015).                      To

establish plain error, Zuspan 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       affect[s]      the   fairness,    integrity     or   public

reputation of judicial proceedings.”                 Id. (internal quotation

marks omitted).

     We conclude that any error in the admission of the store’s

findings did not affect Zuspan’s substantial rights.                  First, the

amount     of   loss       was   established    by     Zuspan’s     payment    of

restitution     to   the    state    court.    Moreover,     the    Government’s

evidence, including videos of the transactions shown during the

hearing, established that items were not being scanned into the

register.

     Zuspan next contends that the district court abused its

discretion      in   revoking       his   supervised   release      because   the

Government’s evidence failed to establish he had the specific

intent to defraud.         We review for abuse of discretion a district

court’s    judgment     revoking      supervised   release    but    review   its

factual findings for clear error.             United States v. Padgett, 788

F.3d 370, 373 (4th Cir. 2015), cert. denied, __ S. Ct. __, 2015

WL 5937870 (U.S. Nov. 9, 2015) (No. 15-6499); United States v.

Copley, 978 F.2d 829, 831 (4th Cir. 1992).                The district court

need only find a violation of a condition of supervised release

                                          4
by a preponderance of the evidence.                  18 U.S.C. § 3583(e)(3)

(2012); Copley, 978 F.2d at 831.                “[A] preponderance of the

evidence . . . simply requires the trier of fact to believe that

the existence of a fact is more probable than its nonexistence.”

United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)

(internal quotation marks omitted).

       We conclude the district court did not clearly err when it

found    that    Zuspan    intended     to   defraud    the   store.      Zuspan

admitted that he knew he was getting a break and that the clerk

was not scanning all of the items he purchased.                  The video and

store records show that Zuspan purchased cigarettes, yet only

paid using an Electronic Benefits Transfer (EBT) card — further

demonstrating that Zuspan was aware he was not being charged for

items because EBT cards cannot be used to pay for tobacco.                   See

7 U.S.C.A. §§ 2012(d)(1), (k)(1), 2016(b) (West 2010 & Supp.

2015).     Moreover, as the Government argued below, the number and

circumstances      of   the   transactions     is    circumstantial     evidence

that Zuspan intended to defraud the store.

       Finally, Zuspan asserts that it was fundamentally unfair to

revoke his supervised release because he detrimentally relied

upon     his    probation        officer’s   promise      that    his     federal

supervision would not be revoked in forgoing a challenge to the

state charges and instead paying restitution to resolve those

charges.        However,    as    the   Government     argues,   the    probation

                                         5
officer could not promise that Zuspan’s supervised release would

not be revoked after the state charges were dismissed because

only   the   district         court   had   authority      to    revoke   supervised

release    and   retained       discretion      as   to   whether    to   accept    or

reject the probation officer’s recommended disposition.                         See 18

U.S.C. § 3583(e)(3).

       Accordingly, we affirm the district court’s judgment.                        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.



                                                                            AFFIRMED




                                            6
