                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4165


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

WILLIAM HORACE JOHNSON, JR.,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:96-cr-00178-BO-1)


Argued:   March 26, 2010                  Decided:   April 20, 2010


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Paul K. Sun, Jr., ELLIS & WINTERS, LLP, Raleigh, North
Carolina, for Appellant. Jennifer P. May-Parker, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
ON BRIEF: George E. B. Holding, United States Attorney, Anne M.
Hayes, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      William        Horace     Johnson,    Jr.,       appeals    from      the     district

court’s judgment revoking his term of supervised release and

sentencing him to 22 months in prison.                          Johnson presents two

primary appellate contentions:              first, he challenges the court’s

revocation of supervised release, contending that it erred in

admitting        unreliable       hearsay       testimony        at     the     revocation

hearing;        and,   second,     he    maintains       that    the    court       gave   an

inadequate explanation for the revocation sentence, rendering it

plainly unreasonable.            As explained below, we affirm.



                                            I.

      In    August      1997,     Johnson       was    convicted       in     the    Eastern

District        of     North     Carolina        of     extortion       by      interstate

communication, in contravention of 18 U.S.C. § 875(b), and was

subsequently sentenced to 151 months of imprisonment, plus 36

months     of    supervised      release.         In    addition       to   the     standard

conditions of supervised release — such as working regularly at

a lawful occupation and refraining from controlled substances —

the   court      imposed       special   conditions       of     supervised         release,

including mental health and drug treatment and participation in

a residential reentry program.

      In November 2007, Johnson was released from custody and

began serving on supervised release.                    To abide by the conditions

                                            2
thereof,    Johnson     resided      at   the    Bannum    Place     of   Wilmington

(“Bannum Place”), a residential reentry center in Wilmington,

North Carolina.         He also secured employment with a Wilmington

restaurant and participated in a mental health treatment program

at Wilmington’s Trinity Wellness Center.

     In June 2008, Johnson’s probation officer, Kevin Connolley,

moved to revoke supervised release, asserting that Johnson had

violated several of his release conditions.                   More specifically,

Connolley alleged that Johnson had missed multiple appointments

with his therapist; had been fired from his job; and had used

crack cocaine on several occasions.                   On June 18, 2008, at the

conclusion of a revocation hearing, the district court found

that Johnson had committed each of the alleged violations and

revoked     supervised      release.          The     court   imposed     a     40-day

revocation sentence, to be followed by 24 months of supervised

release under the conditions it had initially imposed.

     On July 11, 2008, Johnson was released from custody and

began    serving      his   second    term      of   supervised      release.      He

returned    to   Bannum     Place,     resumed       his   therapy    program,     and

attempted to obtain lawful employment.                     Less than two months

later,     however,     Probation     Officer        Connolley    again    moved   to

revoke Johnson’s supervised release, alleging that Johnson had

violated his release conditions by (1) failing to abide by the

rules and conditions of Bannum Place (the “rules violation”);

                                          3
(2)   failing      to    maintain      lawful         employment    (the       “employment

violation”); and (3) failing to participate in a mental health

treatment program (the “therapy violation”).                            With respect to

the   rules     violation,          Connolley         asserted     that    Johnson       was

discharged from Bannum Place in August 2008 after he refused to

follow    a   staff     member’s     instructions.           As    to    the   employment

violation, Connolley alleged that he instructed Johnson — who

had been without work for nearly three months — to apply for

employment at several fast-food restaurants in Wilmington, but

that Johnson failed to do so because he considered such work

“demeaning” and refused “to work around black people.”                           J.A. 36. 1

Finally, Connolley maintained that Johnson committed the therapy

violation     by     missing    a     scheduled         session    with    his      Trinity

Wellness      Center     therapist      on       August    20,     2008.         Connolley

included      with      the   revocation         motion     a     Supervised        Release

Violation     Worksheet,       by    which       he    applied     Chapter      7   of   the

Sentencing Guidelines to calculate Johnson’s advisory Guidelines

range as 8 to 14 months. 2


      1
       Citations herein to “J.A. ___” refer to the Joint Appendix
filed by the parties in this appeal.
      2
       Chapter 7 of the Guidelines — entitled “Violations of
Probation and Supervised Release” — includes, inter alia, a
“Revocation   Table”  suggesting   an  appropriate   term   of
imprisonment based on a defendant’s criminal history category
and the grade of his supervised release violation.    See USSG
§ 7B1.4(a).   Each of Johnson’s three alleged violations is a
(Continued)
                                             4
       On    February       11,    2009,     the      district      court        conducted      a

hearing      on     the    second     motion        for    revocation       of     supervised

release.           After    Johnson      denied       violating      any    conditions          of

supervised          release,       the      prosecutor           presented        Connolley’s

testimony      to     establish      that    Johnson       had     committed       the    three

violations.          Asserting that Connolley’s testimony consisted of

inadmissible          hearsay,      Johnson          objected      thereto.             Johnson

maintained        that     Connolley     lacked       first-hand      knowledge          of    the

alleged      violative       conduct     and        had   only    learned    of     Johnson’s

behavior      by     meeting      with   Johnson’s         therapist       and    the    Bannum

Place       staff.         Johnson       thus       protested       that     admission         of

Connolley’s testimony infringed on his right to confront and

cross-examine adverse witnesses.                      In response, the prosecution

erroneously          asserted         that          revocation       proceedings              “are

appropriately treated . . . under the relaxed rules of evidence

which permit the presentation of hearsay and summary evidence.”

J.A.    49–50.        The    prosecution        thus      maintained       that     Connolley

could properly testify to Johnson’s conduct in all instances.




“Grade C” violation, the lowest of the three grades, see id.
§ 7B1.1(a)(3), resulting in a Guidelines range of 8 to 14 months
when combined with his criminal history category of VI, see id.
§ 7B1.4(a).   Notwithstanding this advisory range, Johnson was
also subject to a two-year statutory maximum sentence.    See 18
U.S.C. § 3583(e)(3).



                                                5
      Without explanation, the district court overruled Johnson’s

hearsay objection, and Officer Connolley proceeded to testify in

support of the three violations.                    Relying on reports from the

Bannum Place staff, Connolley testified that Johnson committed

the rules violation when he refused “to allow staff to review a

receipt from a purchase he had made.”                          J.A. 50.      Connolley

further testified, based on the therapist’s account of Johnson’s

conduct,     that    Johnson     missed     a     scheduled     session    at    Trinity

Wellness      Center,     thereby      committing       the     therapy     violation.

Notably,     however,     Connolley       had      first-hand    knowledge       of    the

employment violation, testifying that he personally instructed

Johnson to apply for employment at specific restaurants in the

Wilmington area, and that Johnson had refused.                      Based solely on

Connolley’s      testimony       —    the     prosecution       produced    no        other

evidence, and Johnson neither testified nor presented any other

evidence — the court found that Johnson had committed each of

the three violations and revoked his term of supervised release.

       The    district    court       thereafter       heard    argument     from      the

parties regarding sentencing.                 In that regard, the prosecution

maintained that Johnson was “psychologically distorted” and had

refused      medication    and       proper       treatment,    rendering       him    “as

dangerous . . . as he was when he was first incarcerated.”                            J.A.

67.    The Government thus requested a statutory maximum sentence

of    24   months,    notwithstanding             Johnson’s    advisory    Guidelines

                                              6
range   of    8   to    14   months.         In    response,         Johnson’s    counsel

stressed the “technical” nature of the violations and asked the

court   instead    to    “give      [Johnson]      credit      for    time   served    and

terminate supervised release.”               Id. at 72.        Johnson himself then

spoke, emphasizing his history of mental illness and his various

health problems.         He asserted that the Bureau of Prisons (the

“BOP”) had neglected his mental health needs when he served his

initial      sentence    and       maintained      that   he    likely       would    have

received proper treatment had he been imprisoned at the Butner

Federal      Correctional          Complex       (“Butner”)      in     Butner,      North

Carolina.      Johnson also explained that he suffered from glaucoma

that had not been properly treated.                   He concluded by informing

the court that he was “struggling” and “need[ed] some relief.”

Id. at 75.

      Following Johnson’s statement, the district court explained

that it would try to “do something positive” for him.                            J.A. 77.

The court referenced Johnson’s health problems and, in response

to his claim that the “BOP has absolutely done me no good,”

explained that it would “try to change that and put you in a

situation where you get somebody to pay attention to you and you

get   some    care.”         Id.      The    court    then      imposed      a   22-month

revocation sentence — which equaled the balance of Johnson’s

second term of supervised release — and recommended that he

serve his prison term at Butner.                     The court also recommended

                                             7
that Johnson “receive mental health evaluation, mental health

treatment, and counseling and medical treatment for his current

medical problems.”         Id. at 78–79.

      Johnson       timely     noticed          this     appeal,       and       we     possess

jurisdiction        pursuant      to   18      U.S.C.    § 3742(a)         and     28    U.S.C.

§ 1291.



                                               II.

      We     review    for     abuse      of    discretion       a     district         court’s

decision to revoke supervised release.                         See United States v.

Pregent, 190 F.3d 279, 282 (4th Cir. 1999).                          In conducting such

a review, we examine the court’s findings of fact — including a

finding that the defendant violated a condition of supervised

release — for clear error.                See United States v. Oquendo-Rivera,

586   F.3d    63,     67   (1st    Cir.     2009).        We   review        for      abuse   of

discretion a district court’s evidentiary rulings and subject

them to harmless error review.                       See United States v. Johnson,

587 F.3d 625, 637 (4th Cir. 2009).

      We     review    a     sentence       imposed      after       the   revocation         of

supervised release to determine if it is “plainly unreasonable.”

See United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006).

“In determining whether a sentence is plainly unreasonable, we

first decide whether the sentence is unreasonable,” applying the

same procedural and substantive considerations that we employ in

                                               8
reviewing an initial sentence.                   Id. at 438.            If the revocation

sentence is either procedurally or substantively unreasonable,

“we   must      then        decide     whether       the      sentence          is     plainly

unreasonable, relying on the definition of ‘plain’ that we use

in our ‘plain’ error analysis.”                Id. at 439.



                                            III.

                                             A.

      In     this    appeal,       Johnson     first      challenges           the    district

court’s    decision         to   revoke     his    term    of       supervised        release,

contending that the court abused its discretion by admitting and

considering         unreliable       hearsay       evidence         —    namely,       Officer

Connolley’s         testimony.         Johnson      maintains           that     Connolley’s

testimony     was        predicated    on    the     out-of-court          statements         of

various third parties and thus contravened Johnson’s right to

confront adverse witnesses.

      Revocation hearings are deemed to be informal proceedings,

in which the rules of evidence need not be strictly observed.

See   Fed.    R.     Evid.       1101(d)(3).         Nevertheless,             because       such

proceedings may result in a significant loss of liberty, the

Supreme    Court      has    determined      that     they      must     satisfy       minimum

requirements        of    due    process,      including        a    limited         right   “to

confront     and     cross-examine        adverse     witnesses.”              Morrissey      v.

Brewer, 408 U.S. 471, 489 (1972).                      Federal Rule of Criminal

                                             9
Procedure          32.1,      which          governs       revocation              proceedings,

incorporates this limited right of confrontation, providing in

pertinent part that a supervised releasee must be accorded the

opportunity at a revocation hearing “to question any adverse

witness,      unless       the    judge       determines        that        the    interest     of

justice does not require the witness to appear.”                                  Fed. R. Crim.

P. 32.1(b)(1)(B)(iii).              Pursuant to Rule 32.1, “the court should

apply a balancing test at the hearing itself when considering

the releasee’s asserted right to cross-examine witnesses” and

should “balance the person’s interest in the constitutionally

guaranteed right to confrontation against the government’s good

cause   for        denying       it.”         Fed.    R.   Crim.           P.    32.1    advisory

committee’s        note    (2002).           Notably,      we     have      recognized       that,

pursuant      to    Rule     32.1,       a    court    may      only        consider       hearsay

evidence    in      a   revocation           proceeding      if       it    is    “demonstrably

reliable.”         United States v. McCallum, 677 F.2d 1024, 1026 (4th

Cir. 1982).

      Here,      there      is    no     indication        that       the       district    court

conducted a Rule 32.1 analysis.                      In authorizing the prosecution

to present its case through the testimony of Officer Connolley —

predicated on the erroneous advice of the prosecutor — the court

did   not   assess         whether       “the   interest         of    justice”         warranted

admission      of       hearsay         evidence.          See        Fed.        R.    Crim.   P.

32.1(b)(1)(B)(iii).              Nor did the court determine that the out-

                                                10
of-court     statements       underlying           Connolley’s          testimony          were

“demonstrably       reliable.”         See        McCallum,      677     F.2d    at     1026.

Accordingly, the court necessarily abused its discretion when it

admitted Connolley’s hearsay testimony.                        See United States v.

Delfino, 510 F.3d 468, 470 (4th Cir. 2007) (“A district court

abuses its discretion when it . . . fails to consider judicially

recognized    factors      constraining            its    exercise       of     discretion

. . . .”).

       Nevertheless,       the     evidentiary            error        was      necessarily

harmless, in the circumstances of this case, for the prosecution

presented    sufficient          non-hearsay          evidence      to       support       the

employment    violation.           More      specifically,         Officer       Connolley

testified — based on his first-hand knowledge — that Johnson

(1) had been unemployed for nearly three months prior to the

filing of the revocation motion; and (2) refused to apply for

jobs   at   local    restaurants,           despite      being    instructed          by   the

probation office to do so.             This evidence sufficed to prove that

Johnson had failed to work regularly at a lawful occupation, as

his conditions of release required.                   See 18 U.S.C. § 3583(e)(3)

(authorizing revocation of supervised release if district court

finds by preponderance that violation occurred).                              Accordingly,

although    the    court   erred       in    failing      to     make    the     Rule      32.1

assessment    of    whether      the    hearsay       evidence         was    demonstrably

reliable and whether the interest of justice necessitated its

                                             11
admission, the court did not clearly err in finding that Johnson

had violated a condition of supervised release; thus, the court

did not abuse its discretion in revoking Johnson’s supervised

release.       See     Fed.     R.    Crim.       P.     52(a)       (“Any      error,     defect,

irregularity,        or    variance         that       does        not    affect       substantial

rights must be disregarded.”).

                                                 B.

      Finally,       Johnson        challenges          his        revocation      sentence     as

plainly unreasonable.                The district court imposed a 22-month

revocation sentence, less than the 24-month statutory maximum

but    more    than       the   8-        to     14-month          range       advised    by   the

Guidelines.        Johnson maintains that the court procedurally erred

by offering an insufficient explanation for the above-Guidelines

sentence.      In assessing whether Johnson’s revocation sentence is

plainly     unreasonable,            we    must        first       determine       whether     the

sentence      is   unreasonable,           taking       into       account      the     sentencing

court’s    broad      discretion          in     imposing          such    a   sentence.       See

United States v. Thompson, 595 F.3d 544, 546–47 (4th Cir. 2010).

Indeed,     our    inquiry      into        whether       a        revocation      sentence     is

unreasonable        “takes      a         more     deferential             appellate       posture

concerning issues of fact and the exercise of discretion than

reasonableness review for guidelines sentences.”                                  United States

v.    Moulden,     478     F.3d       652,       656     (4th       Cir.       2007)     (internal

quotation      marks      omitted).            Although        a    sentencing         court   must

                                                 12
provide a sufficient explanation of its sentence to enable an

effective reasonableness review, “this statement need not be as

specific as has been required for departing from a traditional

guidelines     range.”      Id.    at    657     (internal     quotation     marks

omitted).     So long as the court presents some explanation for

the sentence, thereby “provid[ing] us an assurance that [it]

considered the § 3553(a) factors with regard to the particular

defendant,” we must defer to the sentencing decision.                    Id.; see

also Thompson, 595 F.3d at 547.

      Here, the district court provided a sufficient explanation

of    Johnson’s      22-month     revocation       sentence.           The   court

specifically      referenced    Johnson’s      mental     health   problems   and

observed that it would “try to do something positive” by placing

Johnson where he could “get some care.”              J.A. 77.      Indeed, after

Johnson complained that the BOP had neglected his mental health

during his initial term of imprisonment, the court recommended

that Johnson serve his revocation sentence at Butner, where he

could receive appropriate mental health evaluations, treatment,

and   counseling.        Moreover,      the     court     referenced    Johnson’s

physical health problems, recommending that he receive proper

treatment for glaucoma and other health issues.

      The    court   thus   properly         predicated    Johnson’s     22-month

revocation sentence on his need for medical treatment and care,

a consideration squarely authorized by § 3553(a).                  See 18 U.S.C.

                                        13
§ 3553(a)(2)(D);       see    also   id.    § 3583(e)    (requiring    sentencing

court       to    consider    aspects      of    § 3553(a)    before     imposing

revocation sentence).          Johnson does not contend that the court

failed to consider other pertinent sentencing factors (or that

it considered impermissible factors).                  In these circumstances,

Johnson’s        revocation   sentence      is   not    unreasonable    and   thus

cannot be plainly unreasonable.             See Crudup, 461 F.3d at 440. 3




        3
       Johnson presents two additional sentencing contentions
that we can reject without prolonged discussion.      First, he
maintains that the district court procedurally erred because it
failed to consider his advisory Guidelines range.    Although a
sentencing court must consider the policy statements in Chapter
7 of the Guidelines when imposing a revocation sentence, see
Crudup, 461 F.3d at 439, the court “need not engage in
ritualistic incantation” in order to satisfy its burden, see
United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995).    So
long as the advisory range was put before it, “[c]onsideration
is implicit in the court’s ultimate ruling.” Davis, 53 F.3d at
642.     Because Officer Connolley’s motion for revocation
accurately calculated the advisory Guidelines range, the court
did not err in this regard.

     Second,   Johnson   asserts   that   his   above-Guidelines
revocation sentence is substantively unreasonable, given the
“technical” nature of his violations.       The district court,
however, predicated its chosen sentence on Johnson’s need for
therapy and medical treatment, and a court may properly consider
a defendant’s rehabilitative needs in determining the length of
a revocation sentence. See Crudup, 461 F.3d at 440; see also 18
U.S.C. § 3553(a)(2)(D) (authorizing sentencing court to consider
whether sentence provides defendant with needed medical care).
Accordingly, the court did not substantively err when it imposed
a 22-month sentence designed to enable Johnson to receive proper
treatment.



                                           14
                             IV.

     Pursuant to the foregoing, we reject Johnson’s appellate

contentions and affirm.

                                                     AFFIRMED




                             15
