UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                 No. 97-4216

RAYMOND EDWIN D'ARCO,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-91-385)

Submitted: January 27, 1998

Decided: February 19, 1998

Before WIDENER and ERVIN, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Timothy N. Barber, Charleston, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Stephanie D. Thacker,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Raymond Edwin D'Arco appeals the district court order revoking
his supervised release and imposing a sentence of eighteen months
incarceration.

In February 1993, D'Arco was sentenced to fifteen months incar-
ceration followed by three years of supervised release for pleading
guilty to aiding and abetting in tampering with a vehicle identification
number. He began his supervised release in April 1994.

In January 1997, D'Arco's probation officer received information
from D'Arco's former girlfriend, Vickie McFarland, that D'Arco
assaulted her. Thus, the probation officer petitioned the court to issue
a warrant and revoke D'Arco's supervised release. The petition
alleged that D'Arco violated the condition of his supervision that he
not commit another federal, state, or local crime because he had "been
charged with domestic violence as a result of an incident that
occurred on January 16, 1997."

A revocation hearing was held on February 6, 1997, and the Gov-
ernment presented the testimony of McFarland and several corrobo-
rating witnesses, each of whom testified regarding the January 16
incident. At the close of the Government's evidence, upon D'Arco's
motion, the district court dismissed the petition without prejudice to
the Government because the evidence presented did not strictly
adhere to the allegation in the revocation petition. Although the Gov-
ernment presented evidence that D'Arco had committed domestic
assault, the petition erroneously alleged that D'Arco had been
"charged with" domestic assault.

D'Arco's probation officer filed a second petition to revoke
D'Arco's supervised release alleging that D'Arco"committed" the
state offenses of domestic battery and kidnapping.

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The district court held a second revocation hearing on March 12,
1997, and adopted the testimony of the Government witnesses who
previously testified at the February 6 hearing. D'Arco then presented
two witnesses and proffered testimony that was objected to by the
Government. At the close of the hearing, the district court found that
D'Arco did attack and assault McFarland on January 16. Thus, the
district court revoked D'Arco's supervised release.

On appeal, D'Arco contends that the district court erred: (1) by
finding that he committed a Grade A violation of the conditions of his
supervised release; (2) by refusing to hear and admit testimony of
defense witnesses intended to discredit McFarland; and (3) in calcu-
lating his sentence for violating his supervised release.

Conduct constituting a state offense punishable by a term of
imprisonment exceeding one year that is a crime of violence states a
Grade A violation of supervised release conditions. See U.S. Guide-
lines Manual § 7B1.1(a)(1), p.s. (Nov. 1996). Upon a finding of a
Grade A violation, the district court shall revoke supervised release.
See USSG § 7B1.3(a)(1), p.s. In contending that the district court
erred by finding that he committed a Grade A violation of his super-
vised release conditions, D'Arco makes two arguments. He first
claims that his due process rights were violated because he did not
receive notice of his alleged violations. He also contends that the evi-
dence was insufficient to support the district court's finding that he
violated his supervised release conditions. Both arguments are merit-
less.

Due process requires that a defendant facing revocation of his
supervised release be given: (1) written notice of the alleged viola-
tion; (2) disclosure of the evidence against him; (3) an opportunity to
appear and present evidence; (4) an opportunity to question adverse
witnesses; and (5) notice of the right to be represented by counsel. See
Fed. R. Crim. P. 32.1(a)(2); see also Morrissey v. Brewer, 408 U.S.
471, 488-89 (1972). D'Arco received notice of the charges against
him in two petitions filed by the probation office. Furthermore, prior
to the revocation hearing at which his supervised release was revoked,
D'Arco was present and participated in four evidentiary hearings.

After the first revocation petition was filed, a magistrate held a pre-
liminary hearing. The Government called several witnesses who were

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cross-examined by defense counsel. D'Arco testified at that hearing.
The district court then held the first revocation hearing on February
6. Again, the Government called witnesses who were cross-examined
by defense counsel. After the second petition was filed, a magistrate
held another preliminary hearing. Although the Government
attempted to have the magistrate judge adopt the testimony from the
initial preliminary hearing, defense counsel objected and insisted
upon hearing the Government witnesses and cross-examining them.
At the second revocation hearing on March 12, the court adopted the
testimony from the initial revocation hearing on February 6 and
D'Arco presented two witnesses and proffered testimony that was
objected to by the Government. Thus, we find that D'Arco received
the process he was due. See Fed. R. Crim. P. 32.1(a)(2); Morrissey,
408 U.S. at 488-89.

Furthermore, the record supports the district court's finding that
D'Arco committed a Grade A violation of the terms of his supervised
release. The district court had only to find a violation of a condition
of D'Arco's supervised release by a preponderance of the evidence.
See 18 U.S.C. § 3583(e)(3) (1994). Further, this court must review the
district court's decision to revoke D'Arco's supervised release for an
abuse of discretion. See United States v. Copley , 978 F.2d 829, 831
(4th Cir. 1992).

The second revocation petition alleged that D'Arco"committed"
the state crimes of domestic battery and kidnaping. Domestic battery
does not constitute a Grade A violation under West Virginia law
because the offense is not punishable by a term of imprisonment
exceeding one year. See USSG § 7B1.1(a)(1); W. Va. Code § 61-2-
28(a) (1997). However, kidnapping does constitute a Grade A viola-
tion. See USSG § 7B1.1(a)(1); W. Va. Code § 61-2-14a (1997). West
Virginia law states that:

          If any person, by force, threat, duress, fraud or enticement
          take, confine, conceal, or decoy, inveigle or entice away, or
          transport into or out of this State or within this State, or oth-
          erwise kidnap any other person, for the purpose or with the
          intent of taking, receiving, demanding or extorting from
          such person, or from any other person or persons, any ran-
          som, money or other thing, or any concession or advantage

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          of any sort, or for the purpose or with the intent of shielding
          or protecting himself or others from bodily harm or of evad-
          ing capture or arrest after he or they have committed a
          crime, he shall be guilty of a felony . . .

W. Va. Code § 61-2-14a. The parties do not dispute that D'Arco and
McFarland were "family or household" members. Further, the Gov-
ernment presented evidence that D'Arco and McFarland previously
lived together and had a child in common. McFarland testified that on
January 16, she came home from work and pulled into her driveway.
D'Arco drove his truck into the driveway behind McFarland's truck
and blocked her exit. When D'Arco came up to McFarland's truck
window, she rolled down the window "just a little crack." D'Arco
reached his hand through the window and grabbed her hair. He
attempted to roll down the window. He subsequently grabbed a rock
and broke the window and opened the door. He dragged McFarland
out of her truck and threw her on the ground. He grabbed her by her
hair again and dragged her to his truck. He placed her on the seat of
his car and choked her so she would stop screaming. He drew his fist
back and told her that he would knock her out to get her to "shut up."
McFarland stopped screaming. D'Arco held McFarland by the hair as
he drove off. He threatened to kill her. After awhile, D'Arco told
McFarland that he would "let [her] go this time," but that she "better
not [let] one word of it get out." After holding McFarland for approxi-
mately two and a half hours, D'Arco drove her back home and told
her that he would replace the broken window. McFarland, her son,
and several other witnesses testified as to the injuries McFarland
received on January 16.

D'Arco contends that the Government did not show that he had the
requisite "purpose" or "intent" under the kidnapping statute. The
intent to demand "any concession or advantage of any sort" has a
broad meaning. See State v. Hanna, 378 S.E.2d 640, 647 (W. Va.
1989). McFarland testified that D'Arco was "ranting and raving and
screaming the whole time he was going to kill me" and that "[if] I
went to his parole officer of if his parole got violated or anything that
he would kill me, he meant to kill me, and he would kill me." Further-
more, McFarland and D'Arco's present girlfriend testified about a
telephone conversation on January 16 during which McFarland
related to D'Arco's girlfriend that she was attempting to get the title

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to a vehicle D'Arco was driving taken out of her name. D'Arco's pro-
bation officer also testified regarding communication with McFarland
about her concern over the vehicle title. Thus, the evidence supports
a finding that D'Arco was attempting to stop McFarland from con-
tacting his probation officer as evidenced by his threats that if McFar-
land went to his probation officer he would kill her. It is also possible
that D'Arco fled with McFarland in an attempt to evade capture or
arrest after he had committed domestic battery. Therefore, we find
that a preponderance of the evidence supported the district court's
finding that D'Arco committed the offense of kidnaping. See 18
U.S.C.A. § 3583(e)(3).

D'Arco next contends that the district court erred in excluding tes-
timony intended to discredit McFarland. We review evidentiary rul-
ings for an abuse of discretion and such rulings are subject to a
harmless error analysis. See United States v. Brooks, 111 F.3d 365,
371 (4th Cir. 1997). D'Arco challenges the district court's refusal to
admit testimony from defense witnesses that prior to January 16
McFarland had stated that she intended to have D'Arco's supervised
release revoked and D'Arco sent to jail. We find that the district court
did not abuse its discretion in excluding testimony relating to events
that occurred prior to January 16.

Lastly, D'Arco makes a frivolous claim that his sentence upon
revocation was miscalculated under Chapter 7 of the Sentencing
Guidelines. Because the district court found that D'Arco committed
a Grade A violation of his supervised release conditions and was sub-
ject to Criminal History Category III when he originally was sen-
tenced to a term of supervision, his guideline range was eighteen to
twenty-four months. See USSG § 7B1.4, p.s. The court sentenced
D'Arco within that range to eighteen months incarceration.

Accordingly, we affirm the district court's order revoking
D'Arco's supervised release and sentencing him to eighteen months
incarceration. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

AFFIRMED

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