     13-566-cr
     United States v. Baker

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
     CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
     EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
     “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
     PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
 3   22nd day of May, two thousand thirteen.
 4
 5   PRESENT:         JON O. NEWMAN,
 6                    AMALYA L. KEARSE,
 7                    DEBRA ANN LIVINGSTON,
 8                                      Circuit Judges,
 9
10
11   UNITED STATES OF AMERICA,
12                                        Appellee,
13
14           -v-                                                               No. 13-566-cr
15
16   JAMIE BAKER,
17
18                                        Defendant-Appellant,
19
20   RICHARD ANDERSON, AKA PRETTY, AKA PRETTY RICKY, HENRY BEARD, AKA JU JU, JUSTIN BELLE,
21   AKA JUS, AKA JUST BLAZE, MIKELL BUTLER, AKA KELLS, LINSANDRO BROWN, AKA C, TOMMIE
22   CALDWELL, AKA T-BOY, AKA TOMMIE GUN, SHAQUAN HAYES, AKA QUAN, ERIC HARRIS, AKA EASY
23   E, AKA E, RICARDO HENDERSON, AKA RUCKUS, AKA MATEO, AKA TEO, QIERRE JACOBS, AKA
24   STACKS, AKA Q-STACKS, CHARLES LEWIS, JR., AKA CHUCK D, ARSHEEN MONTGOMERY, AKA DUDIE,
25   PHILLIP MOORE, AKA SKRILLA, AKA P-CRACK, AKA BIG PHIL, CURTIS PERKINS, AKA CURT, QUINTEL
26   RAYSOR, AKA QUINNY, AKA Q DA DON, KWAME ROBINSON, AKA KWA, LEON ROBINSON, AKA EON,
27   AKA E-BLIX, JOSE SERRANO, AKA RICO, KAWAUN WIGGINS, AKA DOUGHBOY, DASHAE HARRIS,
28   KADEEM PELL, DESHAWN TARVER, CHARLES EDWARDS, BRIAN WILDER, VAL SOCINSKI, KEVIN
29   ROUNDSVILLE, CHARLES PROCELLA,
30
31                                        Defendants.
 1
 2
 3                                                  LAURIE S. HERSHEY, Esq., Manhasset, NY for
 4                                                  Defendant-Appellant.
 5
 6                                                  PAULA RYAN CONAN, JEFFREY COFFMAN, Assistant
 7                                                  United States Attorneys, for Richard S. Hartunian,
 8                                                  United States Attorney for the Northern District of
 9                                                  New York, Syracuse, NY for Appellee.
10

11          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

12   DECREED that the judgment entered February 11, 2013, is AFFIRMED.

13          Defendant-Appellant Jamie Baker (“Baker”) appeals from a judgment of the United States

14   District Court for the Northern District of New York (Hurd, J.), entered February 11, 2013, revoking

15   Baker’s supervised release upon a finding that she had violated the conditions of that release, and

16   sentencing her to six months’ incarceration, with a 48-month term of supervised release to follow.

17   One month earlier, on January 11, 2013, Baker, who pled guilty to the distribution of controlled

18   substances in violation of 18 U.S.C. § 1952(a)(3) on August 22, 2012, had been sentenced to a

19   below-Guidelines sentence of time served with a supervised release period of five years; standard

20   condition number 7 of Baker’s supervised release provided, in pertinent part, that she would not

21   unlawfully possess or use a controlled substance not properly prescribed by a licensed medical

22   practitioner. The district court determined after a hearing on February 8, 2013, that Baker violated

23   the conditions of her supervised release by ingesting cocaine. Baker raises two issues on appeal:

24   (1) the sufficiency of the evidence supporting Baker’s alleged use of cocaine; and (2) the substantive

25   reasonableness of her sentence. We assume the parties’ familiarity with the underlying facts,

26   procedural history of the case, and issues on appeal, which we reference only as necessary to explain

27   our decision to affirm.

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 1           A district court may revoke a defendant’s term of supervised release and require the

 2   defendant to serve all or part of the term of supervised release in prison if it finds, by a

 3   preponderance of the evidence, that the defendant violated a condition of supervised release. 18

 4   U.S.C. § 3583(e)(3). We review a district court’s determination that a defendant violated the

 5   conditions of supervised release for abuse of discretion, and we review its factual findings for clear

 6   error. See United States v. Carlton, 442 F.3d 802, 810 (2d Cir. 2006).

 7           After reviewing the evidence, we conclude that the district court did not abuse its discretion

 8   in determining that Baker violated the conditions of her supervised release by ingesting a controlled

 9   substance. Baker’s probation officer, Adam Morton (“PO Morton”), testified at the revocation

10   hearing that when he met with Baker on January 17, 2013 and administered an “instant” urinalysis

11   test, the test was positive for cocaine use; when PO Morton asked Baker about the results, Baker told

12   him she had found a baggie containing some substance, that she “decided to put that substance on

13   her tongue which then numbed, then she put the rest of the baggie in her mouth.” PO Morton

14   testified that Baker stated she did not know why she acted in this way, that the substance “was just

15   a trigger for her,” but that she knew it was cocaine. A toxicology report performed by the United

16   States Probation Office’s (“USPO”) national testing laboratory later confirmed the results of the

17   initial urinalysis.

18           Baker testified at the revocation hearing that she tasted the contents of a baggie containing

19   an unknown substance on January 16, 2013, and that when it numbed her tongue “obviously at that

20   time I was thinking of cocaine or something they would cut it with that would numb your tongue.”

21   She asserts that the evidence of her cocaine use was nevertheless insufficient on the theory that, as

22   she testified before the district court, she never intentionally ingested cocaine but dumped the


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 1   baggie’s contents on the ground when she realized what the substance in the baggie was. We

 2   conclude that the district court was well within its discretion to be skeptical of this testimony, in

 3   light of PO Morton’s testimony that Baker admitted to knowingly ingesting cocaine. “[W]here there

 4   are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly

 5   erroneous.” United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008) (quoting United States v.

 6   Sash, 396 F.3d 515, 521 (2d Cir. 2005)) (alteration in Iodice).

 7          Baker further argues that the district court abused its discretion by admitting the laboratory

 8   reports from the Albany Probation Office and the USPO without producing a toxicology witness to

 9   attest to them. While revocation proceedings are “not deemed part of a criminal prosecution,” and

10   defendants are accordingly not entitled to “the full panoply of rights” enjoyed in a criminal trial,

11   United States v. Carthen, 681 F.3d 94, 99 (2d Cir. 2012) (internal quotation marks omitted), under

12   Federal Rule of Criminal Procedure 32.1(b)(2)(C), the defendant has the right to “question any

13   adverse witness unless the court determines that the interest of justice does not require the witness

14   to appear,” Fed. R. Cr. P. 32.1(b)(2)(C). Proffered hearsay statements within an established

15   exception to the hearsay rules are admissible; statements that would be inadmissible under the

16   Federal Rules of Evidence may also be considered upon a “good cause” determination pursuant to

17   which the district court balances “the defendant’s interest in confronting the declarant against . . .

18   the government’s reasons for not producing the witness and the reliability of the proffered hearsay.”

19   Carthen, 681 F.3d at 100 (internal quotation marks, citation, and alterations omitted). We review

20   a district court’s failure to conduct an interest-of-justice balancing test under the harmless error

21   standard. See United States v. Aspinall, 389 F.3d 332, 346 (2d Cir. 2004) (“[A] district court’s

22   failure to comply with the interest-of-justice-determination requirement of Rule 32.1(b)(2)(C) . . .


                                                       4
 1   is subject to harmless-error analysis.”), abrogated on other grounds by United States v. Booker, 543

 2   U.S. 220 (2005).

 3          We need not reach the issue whether the laboratory reports were admissible under an

 4   established hearsay exception because, assuming arguendo that they were not, we conclude that any

 5   error in admitting the reports was harmless. The district court’s conclusion that Baker ingested an

 6   illicit substance was amply supported by the testimony of PO Morton and by Baker’s own

 7   testimony. Indeed, the issue at the hearing was not whether the substance Baker ingested was

 8   cocaine—a point on which the parties agreed—but whether she knowingly used cocaine. In such

 9   circumstances, any error in the district court’s failure to conduct an explicit Rule 32.1(b)(2)(C)

10   balancing analysis as to the laboratory reports before admitting them was harmless.

11          Finally, Baker argues that the six-month sentence imposed by the district court—within the

12   Guidelines range of three to nine months, U.S.S.G. § 7B1.4—was unreasonable and should be

13   reduced given the nature of her circumstances and given a broad concern for overpopulation of

14   prisons. We review a district court’s sentence for “reasonableness,” which is “akin to review for

15   abuse of discretion, under which we consider whether the sentencing judge exceeded the bounds of

16   allowable discretion, committed an error of law in the course of exercising discretion, or made a

17   clearly erroneous finding of fact.” United States v. Leslie, 658 F.3d 140, 142 (2d Cir. 2011) (internal

18   quotation marks and citation omitted).           Although a within-Guidelines sentence is not

19   “presumptively” reasonable, this Court has recognized that “in the overwhelming majority of cases,

20   a Guidelines sentence will fall comfortably within the broad range of sentences that would be

21   reasonable in the particular circumstances.” United States v. Friedberg, 558 F.3d 131, 137 (2d Cir.

22   2009) (internal quotation marks and citation omitted). We conclude the district court did not abuse


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1    its discretion in sentencing Baker to six months’ imprisonment for violating her term of supervised

2    release.

3           We have considered all of Defendant-Appellant’s remaining arguments and find them to be

4    without merit. For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.


5                                                         FOR THE COURT:
6                                                         Catherine O’Hagan Wolfe, Clerk
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