                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 16-4157


UNITED STATES OF AMERICA,

                     Plaintiff – Appellee,

              v.

GEORGE ROYAL BROWN,

                     Defendant – Appellant.


Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, Chief District Judge. (7:15-cr-00039-D-1)


Argued: March 21, 2017                                         Decided: August 28, 2017


Before MOTZ, TRAXLER, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Phillip Anthony Rubin, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF:
Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. John Stuart Bruce, United States
Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
PER CURIAM:

       After admitting hearsay evidence at a revocation hearing, the district court revoked

George Royal Brown’s supervised release and sentenced him to thirty months in prison.

On appeal, Brown challenges his sentence. We affirm the judgment of the district court

because we conclude that if there was error, it was harmless error.


                                            I.

       Brown pleaded guilty to mail theft, bank fraud, and conspiracy to commit bank

fraud in the U.S. District Court for the Eastern District of Virginia. At the time he

committed these offenses, he was on supervised release for his conviction in the U.S.

District Court for the Middle District of Pennsylvania for conspiracy to commit check

fraud. He was sentenced in July 2009 to a prison term of sixty-three months with five

years of supervised release, and he was also ordered to pay more than $100,000 in

restitution. The terms of his supervised release included notifying his probation officer

before any change in residence, submitting to drug testing, and making monthly

restitution payments.    Brown was released from prison in October 2013, and his

supervised release was transferred to the U.S. District Court for the Eastern District of

North Carolina in April 2015.

       In June 2015, Brown’s probation officer filed a motion to revoke his supervised

release, charging Brown with three violations. First, during a visit to Brown’s home the

previous April, the officer learned that Brown was no longer living there and “had not

been seen or heard from in several weeks.” J.A. 14. The officer was unable to contact


                                             2
Brown to discuss the violation. Next, Brown failed to participate in the drug testing

program from January 2015 onward.           Finally, Brown ceased making his monthly

restitution payments after March 2015. In February 2016, the probation officer filed an

amended motion which charged Brown with committing bank fraud and mail theft in the

Northern District of Ohio, in addition to the three prior violations.

       Prior to the revocation hearing, the Government gave notice that it intended to

introduce hearsay evidence through a postal inspector regarding the Ohio bank fraud and

mail theft violation.    That hearsay evidence consisted of statements given to law

enforcement and the postal inspector by four men that Brown allegedly recruited to cash

stolen and altered checks.      The Government asserted that three of the men were

unavailable to testify because they were incarcerated in Ohio for unrelated crimes. After

conducting a search, the Government failed to locate the fourth man, and the available

information suggested that he was transient. Furthermore, the Government averred that,

because the men giving the statements had not entered into any plea deals with the

Government for their roles in the check cashing scheme, they could exercise their Fifth

Amendment privilege upon questioning, although none had indicated any intention of

doing so. Brown objected to the introduction of the hearsay evidence on the grounds that

the statements were unreliable and the witnesses were not truly unavailable.

       At the revocation hearing, Brown admitted to all violations except the bank fraud

and mail theft allegations. After allowing Brown to present his arguments in opposition

to the hearsay evidence and discussing the test to determine whether to admit such



                                              3
evidence in a revocation hearing, the court ruled that it would permit the Government to

present the evidence and then determine its admissibility.

       The Government first called postal inspector Lauren Cajuste, who testified that she

investigated several instances of fraud in Ohio, where checks were stolen from the mail

and then altered to reflect new payees and sometimes new amounts. In conjunction with

local law enforcement agencies, Cajuste identified four individuals who cashed the

checks: Sean Cifra, Jordan Bugg, Dustin Stevens, and Charles Webb.                 After these

witnesses were arrested, all provided materially similar statements regarding the scheme.

       According to Cajuste, Brown and another man would approach a given witness in

a public place, such as outside an employment assistance company, on a bridge, or at a

bus stop. 1 After confirming that the witness had two forms of identification, the men

would purchase clothing and a meal for the witness and then leave him for approximately

an hour. Brown would return with checks in the witness’ name and then drive the

witness to various banks to cash those checks. The witnesses were paid by Brown and

the other man between $50 and $680 for cashing the checks.                Later, each witness

identified Brown as one of the men after viewing a photograph lineup, with their

certainty varying from 70% to 100%. 2

       Cajuste confirmed that Cifra, Bugg, and Webb were incarcerated in Ohio on

unrelated charges at the time of the hearing. She was unable to find Stevens using the

       1
         Brown did not approach Bugg, however. Instead, Webb introduced Bugg to Brown.
       2
         Cifra wrote down the license plate number of the car that the two men were driving.
Law enforcement officers later verified that the car with that license plate was rented by Brown
during this time.


                                               4
contact information that he had provided. After conducting a thorough investigation,

Cajuste concluded that Stevens was transient.

       Brown’s probation officer then took the stand and testified that she was contacted

by Ohio police and informed that Brown was a suspect in a check cashing scam. She also

testified that Brown confessed he had rented the car that Cifra identified, although he

claimed he rented it for a friend.

       After all this evidence was presented, the district court allowed each party to again

make their arguments regarding admissibility of the hearsay evidence. The court found

that the hearsay evidence was reliable because each of the individuals gave substantially

similar statements. The court determined that the unavailability of the witnesses was

largely irrelevant, that the paramount consideration was the reliability of the evidence,

although the court stated that, with three in prison and one missing, there was good cause

to find the witnesses unavailable. The court therefore admitted the evidence and found

that the Government had met its burden in proving the violations by Brown.

       The district court stated that, pursuant to the United States Sentencing Guidelines,

the bank fraud and mail theft charges constituted a Grade A violation, while the other

violations were Grade C. Because Brown had a criminal history category of IV, the

suggested policy statement range was twenty-four to thirty months’ incarceration, with a

statutory maximum of thirty-six months.          Although Brown agreed that the policy

statement range was correct because he was found guilty of the Grade A violation, he

argued that, without the Grade A violation, he would be subject to a policy statement

range of six to twelve months. In that scenario, he would have requested a sentence of

                                             5
ten months. However, because the court admitted the hearsay evidence and found him

guilty of the Grade A violation, Brown requested a sentence of twenty-four months. The

Government requested the statutory maximum sentence of thirty-six months. The court

sentenced Brown to thirty months’ imprisonment. However, the court also stated that,

even if it were to consider only the three Grade C violations, it would still sentence

Brown to thirty months, above the policy statement range, because Brown “egregiously

breached the trust of the court again.” J.A. 142–43.

       Brown filed a timely notice of appeal, and the Court has jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742.



                                            II.

       On appeal, Brown argues that the district court abused its discretion by relying

upon hearsay statements in revoking his supervised release and sentencing him to an

above-Guidelines thirty months’ imprisonment. Assuming for the sake of argument that

the district court erred, however, we find any such error harmless.

                                            A.

       We generally review a district court’s decision to revoke supervised release, as

well as any evidentiary rulings at the revocation hearing, for abuse of discretion. United

States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (revocation decision); United States

v. Doswell, 670 F.3d 526, 529 (4th Cir. 2012) (evidentiary rulings). In certain cases,

however, circumstances may prompt the Court to “proceed directly to an assumed error

harmlessness inquiry,” in which we assume the district court erred and determine whether

                                             6
that error was harmless. United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir.

2014); see also United States v. Hargrove, 701 F.3d 156, 163 (4th Cir. 2012) (“[T]he

assumed error harmlessness inquiry is an appellate tool that we utilize in appropriate

circumstances to avoid the ‘empty formality’ of an unnecessary remand where it is clear

that an asserted guideline miscalculation did not affect the ultimate sentence.”). 3 That is

the appropriate procedure in this case.

       Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides that, at a revocation

hearing, the 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.” A district court’s failure to apply this rule correctly is

a non-constitutional error. United States v. Ferguson, 752 F.3d 613, 618 (4th Cir. 2014).

The Court determines whether a non-constitutional error is harmless by “ensur[ing] that

the error had no substantial and injurious effect or influence on the outcome.” Id. The

vacation of a revocation sentence “is reserved for more serious errors that affect

substantial rights or that directly affect the outcome of a case.” Id. at 619; see also 28

U.S.C. § 2111 (“On the hearing of any appeal or writ of certiorari in any case, the court

shall give judgment after an examination of the record without regard to errors or defects

which do not affect the substantial rights of the parties.”); Fed. R. Crim. P. 52(a) (“Any

error, defect, irregularity, or variance that does not affect substantial rights must be

disregarded.”). Specifically, any error related to a district court’s application of the

       3
         We have omitted internal quotation marks, alterations, and citations here and throughout
this opinion, unless otherwise noted.


                                               7
Guidelines to calculate a revocation sentence “is considered harmless if we determine

that (1) the district court would have reached the same result even if it had decided the

guidelines issue the other way, and (2) the sentence would be reasonable even if the

guidelines issue had been decided in the defendant’s favor.” Gomez-Jimenez, 750 F.3d at

382.

       The first element of the harmless error test is satisfied because the court explicitly

stated that it was announcing an “alternative variant sentence.” J.A. 144. Relying on

Gomez-Jimenez and Hargrove, the district court announced that it would sentence Brown

to thirty months’ imprisonment “even if [the court] only looked at the three Grade C

violations.” J.A. 142; accord J.A. 143 (“Even if I didn’t look at the criminal conduct, I

would impose the same 30-month sentence because I think it is the sentence that is

sufficient but not greater than necessary in this instance.”). The court noted that “the

other[ violations] are Grade C violations, but they’re all, in my view, serious.” J.A. 140;

accord J.A. 141 (recognizing that the violations of “absconding or failing to participate in

urinalysis, failure to pay monetary obligation, or engaging in criminal conduct” were

“very serious, each one a very serious breach of trust, particularly for someone who has

been through the process before and . . . gotten [their supervised release] revoked”).

Despite Brown’s argument that “[t]he vast majority of the revocation hearing focused on

the alleged criminal activity” rather than the Grade C violations, Reply Br. 10, the court

did focus on the circumstances surrounding the Grade A violation because they were in

dispute. Since Brown admitted the Grade C violations, the court had no reason to dwell

on those violations. Any disparity between the extent of the Grade A and Grade C

                                             8
violations discussions therefore does not undercut the court’s alternative variant sentence.

The court “made it abundantly clear that it would have imposed the same sentence . . .

regardless of the advice of the Guidelines” and explained its reasoning. Gomez-Jimenez,

750 F.3d at 382.        We therefore move to the second element and analyze the

reasonableness of the sentence. Id. at 386 (“Because the district court has explicitly

stated that it would have imposed the same sentences regardless of the advice of the

Guidelines, however, we can affirm as long as those sentences are reasonable.”).

         The Court “will affirm a revocation sentence if it is within the statutory maximum

and is not plainly unreasonable.” United States v. Webb, 738 F.3d 638, 640 (4th Cir.

2013).      We review a revocation sentence for both procedural and substantive

reasonableness. Id. A court commits a procedural error by “failing to calculate (or

improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing to adequately explain the chosen sentence—including an

explanation for any deviation from the Guidelines range.” Gall v. United States, 552

U.S. 38, 51 (2007); see also United States v. Bennett, 698 F.3d 194, 200 (4th Cir. 2012)

(noting that the Court follows the instructions in Gall when reviewing a revocation

sentence). The Court will review the substantive reasonableness of the sentence by

“tak[ing] into account the totality of the circumstances, including the extent of any

variance from the Guidelines range.” Gall, 552 U.S. at 51.

         The district court has “broad discretion” in fashioning a revocation sentence and

may “impose a term of imprisonment up to the statutory maximum.” United States v.

                                              9
Crudup, 461 F.3d 433, 439 (4th Cir. 2006). When a district court imposes a revocation

sentence outside of the Guidelines range, the Court “may not apply a presumption of

unreasonableness.” Gall, 552 U.S. at 51. While the Court “may consider the extent of

the deviation,” we “must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Id.

       The second element of the harmless error test is also met in this case. Assuming

arguendo that the district court erred in finding Brown guilty of the bank fraud and mail

theft allegations, Brown would have been subject to a Guidelines policy statement range

of six to twelve months. Having received a sentence of thirty months, Brown argues that

the variance is too high at two-and-a-half times the upper end and five times the lower

end of his Grade C Guidelines range. The Supreme Court, however, has noted that

“deviations from the Guidelines range will always appear more extreme—in percentage

terms—when the range itself is low.” Id. at 47–48. Here, the district court’s thirty-

month sentence was less than the thirty-six-month statutory maximum. See 18 U.S.C.

§ 3583(e)(3). We have upheld revocation sentences with similar or larger variances than

the one here. See, e.g., Crudup, 461 F.3d at 440 (affirming a thirty-six-month revocation

sentence when the Guidelines suggested a sentence of five to eleven months). The

variance alone, therefore, does not render Brown’s sentence unreasonable.

       Brown also argues that “the district court’s justifications for the variance sentence

do not substantively support it.” Reply Br. 11. Principally, Brown contends that the

court erred by focusing on his “breach of trust” because the Guidelines already account

for that breach in providing a policy statement range. Indeed, the focal point of the

                                             10
district court’s reasoning for its sentence was Brown’s breach of trust. See, e.g., J.A. 140

(noting that a court is entitled to “focus on the breach of trust”); J.A. 141 (stating that

each of Brown’s violations were “a very serious breach of trust”); J.A. 143 (concluding

that Brown “egregiously breached the trust of the court again”); J.A. 144 (ultimately

sentencing Brown to thirty months’ imprisonment “for the egregious breach of trust”).

The Guidelines state, however, that “at revocation the court should sanction primarily the

defendant’s breach of trust, while taking into account, to a limited degree, the seriousness

of the underlying violation and the criminal history of the violator.” See U.S. Sentencing

Guidelines Manual ch. 7, pt. A.3(b) (emphasis added). We have previously held that an

“egregious breach of trust[ is] a perfectly appropriate basis—and, in fact, the principal

basis on which the Guidelines encourage courts to ground revocation sentences.”

Bennett, 698 F.3d at 202. As in Bennett, “[o]ur review of the hearing transcript makes

clear that it was the brazen breach of trust inherent in [Brown’s violations] while on

supervised release . . . that drove the district court’s sentencing decision.” Id. at 200.

The district court therefore properly considered Brown’s breach of trust in crafting his

sentence. Accordingly, the sentence is both procedurally and substantively reasonable. 4


       4
          As the Government notes, we have held in an unpublished per curiam opinion that the
“admission of hearsay evidence for sentencing purposes is not improper,” distinguishing this
from the “admission of the hearsay evidence for the purposes of assessing whether [the
defendant] committed the charged violations.” United States v. Grier, 411 F. App’x 614, 616
(4th Cir. 2011). In fact, some of our sister courts have found that “[a] revocation defendant’s due
process right to confrontation does not apply in connection with the length of any resulting
prison sentence.” United States v. Williams, 847 F.3d 251, 254 (5th Cir. 2017) (emphasis
added); accord United States v. Ruby, 706 F.3d 1221, 1227–28 (10th Cir. 2013). Because we
find the sentence satisfies assumed error harmlessness review, however, we need not address the
Government’s argument.


                                                11
                                      III.

For these reasons, the judgment of the district court is

                                                           AFFIRMED.




                                      12
