                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0231n.06

                                           No. 19-4134


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

 UNITED STATES OF AMERICA,                       )                                   FILED
                                                 )                              Apr 28, 2020
        Plaintiff-Appellee,                      )                         DEBORAH S. HUNT, Clerk
                                                 )
 v.                                              )
                                                      ON APPEAL FROM THE UNITED
                                                 )
                                                      STATES DISTRICT COURT FOR THE
 PAUL HENDERSON,                                 )
                                                      NORTHERN DISTRICT OF OHIO
                                                 )
        Defendant-Appellant.                     )
                                                 )


BEFORE:        DAUGHTREY, GIBBONS, and MURPHY, Circuit Judges.

       MARTHA CRAIG DAUGHTREY, Circuit Judge. Defendant Paul Henderson appeals the

judgment of the district court sentencing him to 14 months’ incarceration for violating three

conditions of his supervised release. Henderson argues that the district court failed to ensure that

he knowingly and voluntarily admitted to an allegation that he possessed scheduled drugs and drug

paraphernalia. The defendant thus claims that the district court should have conducted an

evidentiary hearing to determine his culpability regarding that violation. To the extent that

Henderson can establish error in this matter, such error was harmless and did not affect the

sentence imposed upon him. We thus affirm the district court’s judgment.

                     FACTUAL AND PROCEDURAL BACKGROUND

       In 2011, Henderson pleaded guilty in federal district court to distribution of crack cocaine.

The district court sentenced him to serve 52 months in prison, the federal sentence to commence

after completion of service of an Ohio state sentence, and to be followed by three years of
No. 19-4134, United States v. Henderson


supervised release. Pursuant to the provisions of 18 U.S.C. § 3582(c)(2), that 52-month sentence

later was reduced to 42 months, and Henderson began serving the supervised release portion of his

sentence on January 25, 2018.

        In July 2019, Henderson’s probation officer reported that the defendant had left the

jurisdiction without permission and had tested positive for cocaine use during a random drug

screen. As a result, the district court ordered Henderson to submit to location monitoring for 90

days starting August 6, 2019, meaning that he was required to obtain permission from his probation

officer to leave his residence for any purpose other than for work, to obtain medical treatment, or

to attend religious services. Other conditions of supervised release previously imposed upon

Henderson—including not possessing a firearm or ammunition, not possessing any illegal

controlled substance, participating in drug treatment and testing, participating in mental health

testing, working toward a Certificate of General Educational Development (GED), avoiding all

contact with gang members, and submitting to searches of his person and residence “based upon

reasonable suspicion of contraband or evidence of a violation of a condition of release”—remained

in effect.

        Unfortunately for Henderson, his probation officer filed a second violation report in

September 2019, this time outlining four violations of the terms of the defendant’s supervised

release. Violation 1 alleged that “Henderson made numerous unauthorized stops since being

enrolled in the location monitoring program.” Violation 2 alleged that “Henderson failed to enroll

in GED courses since beginning his term of supervised release.” Violation 3 alleged that, during

a search of Henderson’s residence, law enforcement officers found drugs and drug paraphernalia.

And finally, Violation 4 alleged that, during that same search of Henderson’s residence, officers

recovered a revolver and 46 rounds of ammunition. The violation report set forth the maximum



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No. 19-4134, United States v. Henderson


statutory penalty for the violations, as well as noting that the applicable United States Sentencing

Guidelines range of punishment, if the district court were to find that all the violations occurred,

would be 21–27 months.

        At the hearing convened to determine whether Henderson violated the terms of his

supervised release, defense counsel announced to the district court that “Mr. Henderson would

admit as to violations 1, 2, and 3, and he is denying as to violation 4, which is the firearm and

ammunition [allegation].” After hearing sworn testimony from Henderson’s probation officer

regarding the search of the defendant’s residence, the district court noted that “the ammunition and

the handgun were found in an unoccupied room. We know that the home is owned by someone

else, and that the owner has access to the house.” Consequently, the district judge concluded that

“the Court can’t say by a preponderance of the evidence that the ammunition and firearm are, in

fact, [the defendant’s].” The district judge thus stated, “I find Mr. Henderson to be in violation of

supervised release as to violations 1, 2, and 3. I find all three of them to be a grade C violation,

and with a Criminal History Category of VI, we are looking as an advisory Sentencing Guideline[s]

range of 8 to 14 months.”

        When given the opportunity to address the district court prior to imposition of sentence,

Henderson confusingly stated, “I don’t know anything about any guns or drugs being in the house,”

before announcing, “I admit I did eight, 1, 2, and 3 I did; I honestly did. I didn’t get my GED

because I was working two jobs.”1 Then, Henderson again admitted to violating the location-

monitoring term of his supervised release before claiming, “But I ain’t do that other stuff, Ms.

Gaughan. I ain’t do the other stuff.”




        1
         Because Henderson’s admission that “I did eight” seems incongruous and has no relevance to any other
evidence or information in the record, it is possible that the reference is a result of a transcription error.

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No. 19-4134, United States v. Henderson


       Based upon the information before it, the district court then sentenced Henderson “to the

custody of the Bureau of Prisons for a period of fourteen months. Upon release, Defendant is

placed on 24 months of supervised release with the same conditions.”

                                          DISCUSSION

       We have held explicitly that the full panoply of protections afforded by Federal Rule of

Criminal Procedure 11(b) when accepting a guilty plea from a criminal defendant does not apply

in supervised release proceedings. United States v. Melton, 782 F.3d 306, 311–12 (6th Cir. 2015).

Instead, revocation proceedings are governed by the provisions of Federal Rule of Criminal

Procedure 32.1(b), which provides:

       Unless waived by the person, the court must hold the revocation hearing within a
       reasonable time in the district having jurisdiction. The person is entitled to:
              (A) written notice of the alleged violation;
              (B) disclosure of the evidence against the person;
              (C) 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;
              (D) notice of the person’s right to retain counsel or to request that
              counsel be appointed if the person cannot obtain counsel; and
              (E) an opportunity to make a statement and present any information
              in mitigation.

       On appeal, Henderson does not dispute that he knowingly and voluntarily admitted to the

first two violations alleged by the probation officer—that he visited sites not authorized by the

district court’s location-monitoring order without obtaining the permission of the probation office

and that he failed to take actions toward obtaining his GED. Not only did defense counsel, without

objection from Henderson, advise the district court at the start of the revocation hearing that

Henderson admitted those two violations, but the defendant himself admitted in open court that

he “didn’t get [his] GED because [he] was working two jobs” and that he violated the conditions

of his house arrest to spend time with his children and to watch his children participate in athletic


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No. 19-4134, United States v. Henderson


events. The district court thus did not err in finding, without taking additional evidence, that

Henderson violated at least two conditions of his supervised release.

       Henderson also contends, however, that the record contains no evidence that he knew of

his Rule 32.1 rights or that anyone informed him of the possible sentence he faced for violating

the terms of his supervised release. Contrary to the defendant’s assertion, the record on appeal

establishes that Henderson’s Rule 32.1(b) rights were protected. He received written notice of the

allegations against him through receipt of the violation report, and that report detailed both the

evidence against him and the potential penalties he faced. Henderson appeared, with counsel, at

the hearing, challenged the testimony of the witness against him, and convinced the district court

that the most serious allegation could not be proven by a preponderance of the evidence. He also

was granted the opportunity to address the court directly and availed himself of that chance.

       The record also establishes that Henderson was made aware on numerous occasions of the

sentence facing him should the district court determine that he indeed violated the terms of his

supervised relief. As noted, the violation report listed the applicable Guidelines sentencing range

should Henderson be found to have committed the most serious alleged violation—possession of

a firearm and ammunition—and explained in detail the rationale for arriving at that sentencing

range. Moreover, twice at the revocation hearing, before the district court imposed its sentence,

mention was made of the reduced Guidelines range to which Henderson was subject given the fact

that the firearms violation could not be established by a preponderance of the evidence. First,

while arguing that the charge regarding possession of a firearm should be dismissed, defense

counsel noted that the remaining violations were Grade C violations that would change the

potential sentencing range to 8-14 months. Then, prior to entertaining argument on sentencing,




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No. 19-4134, United States v. Henderson


the district judge noted again that the appropriate sentencing range was 8-14 months. Thus, there

is no merit to either of these challenges to the district court’s sentencing decision.

       Henderson nevertheless maintains that the sentence imposed upon him is improper because

he did not admit that he possessed scheduled drugs or drug paraphernalia. Thus, he argues that

the district court erred in failing to take evidence on the validity of that particular violation

allegation. As we stated in Melton, however, “a court’s acceptance of an admission to a supervised

release violation, or stated differently, a court’s acceptance of a waiver of the right to contest the

revocation of supervised release, is not governed by [the stringent requirements of] Federal Rule

of Criminal Procedure 11.” Melton, 782 F.3d at 311. “Instead, the accused’s admission or waiver

need only be knowing and voluntary under the totality of the circumstances.” Id.

       Before the district court, Henderson did state, “I don’t know anything about any guns or

drugs being in the house.” He also claimed, after admitting to violating the conditions of his house

arrest, “But I ain’t do that other stuff, Ms. Gaughan. I ain’t do the other stuff.” Contradicting

those denials, however, is the defendant’s unambiguous admission that “1, 2, and 3 I did; I honestly

did.” Because Henderson obviously was conversant with the information contained in the

probation officer’s violation report, it also is telling that he raised no objection when, within the

first moments of the hearing, defense counsel responded to an inquiry from the district judge by

stating, “Your Honor, Mr. Henderson would admit as to violations 1, 2, and 3, and he is denying

as to violation 4, which is the firearm and ammunition.” Additionally, after the probation officer

testified about the search of Henderson’s home and the discovery of marijuana and a marijuana

pipe in the defendant’s bedroom and oxycodone pills in another room, the following conversation

occurred between the district court and defense counsel, again without objection or contradiction

from Henderson:



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       THE COURT:             Okay. So am I correct that the Defendant admits to violation
                              No. 1?
       MR. MISIEWICZ:         Yes[,] your Honor.
       THE COURT:             Number 2?
       MR. MISIEWICZ:         Yes, your Honor.
       THE COURT:             Number 3?
       MR. MISIEWICZ:         Yes, your Honor.
       THE COURT:             Denies number 4.
       MR. MISIEWICZ:         Correct.

       Without question, Henderson’s on-again, off-again statements regarding his admissions of

guilt are troublesome when attempting to ascertain whether, under the totality of the circumstances,

he indeed admitted to violation 3 and waived the right to have an evidentiary hearing on that

allegation. Even if the district court erred in concluding that such an admission had been made,

however, we conclude that any such error is harmless. Pursuant to the provisions of § 7B1.1(a)(3)

of the United States Sentencing Guidelines, violations 1, 2, and 3 each would be considered a

Grade C violation. Consequently, because Henderson is a criminal-history-category VI offender,

the sentencing range for his violations, even without consideration of the drug violation, is 8-14

months. See U.S.S.G. § 7B1.4(a). Because the district court imposed a sentence within that range,

Henderson was not prejudiced by any possible error committed during the revocation hearing.

                                         CONCLUSION

       For the reasons discussed, even if the district court erred in this matter by failing to hold

an evidentiary hearing on the allegation that Henderson was in unlawful possession of scheduled

drugs, that error was harmless. Even absent a finding that the defendant violated the terms of his

supervised release by being in possession of those substances, other violations to which Henderson

readily admitted subjected him to the same additional prison sentence he received. We thus

AFFIRM the judgment of the district court.




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