                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4042


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAVID LEE DRAYTON, a/k/a Diamond,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:94-cr-00126-MOC-7)


Submitted:   December 28, 2015            Decided:   January 6, 2016


Before KING, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Chiege O. Kalu Okwara, Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, Anthony J.
Enright, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      David   Lee     Drayton      appeals       the     district     court’s    judgment

revoking his supervised release and sentencing him to a term of

51 months’ imprisonment.             We affirm.

      We review a district court’s judgment revoking supervised

release for abuse of discretion, and its factual findings for

clear error.         United States v. Padgett, 788 F.3d 370, 373 (4th

Cir. 2015), cert. denied, __ S. Ct. __, 2015 WL 5937870 (U.S.

Nov. 9, 2015) (No. 15-6499); United States v. Copley, 978 F.2d

829, 831 (4th Cir. 1992).              The district court need only find a

violation       of    a     condition        of        supervised      release     by     a

preponderance of the evidence.                   18 U.S.C. § 3583(e)(3) (2012);

Copley, 978 F.2d at 831.             “[A] preponderance of the evidence . .

.   simply    requires       the     trier    of       fact    to   believe     that    the

existence of a fact is more probable than its nonexistence.”

United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)

(internal quotation marks omitted).

      Drayton admitted at the hearing that he violated the terms

of his supervised release by engaging in the cocaine transaction

charged in the violation petition.                       He asserts, however, that

the district court erred in rejecting his entrapment defense.

The   defense    of    entrapment       “has       two   elements:     (1)    government

inducement      of    the    crime     and       (2)     the   defendant’s       lack    of

predisposition        to    engage    in     the    criminal        conduct.”      United

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States v. Ramos, 462 F.3d 329, 334 (4th Cir. 2006).                              The defense

uses a burden-shifting scheme, where the defendant bears the

“initial     burden       of     presenting        evidence       that     the    government

induced him to commit the crime.”                     United States v. Jones, 976

F.2d 176, 179 (4th Cir. 1992).                     Once the defendant has done so,

the burden shifts to the government to establish the defendant’s

predisposition.          Id.     Thus, even if the government did induce a

defendant to commit a crime, the defense of entrapment fails if

the   government         can    prove    predisposition.             United       States      v.

Squillacote, 221 F.3d 542, 569 (4th Cir. 2000).

      Assuming Drayton showed that he was induced to participate

in    the   cocaine       transaction          with       an    undercover       agent,      the

district     court       did     not     clearly      err       in   finding      that       the

government        met    its     burden    of       demonstrating          predisposition.

Drayton     was     recently       on    supervised            release     for    a    cocaine

conspiracy        conviction       at    the       time    he     sold     cocaine      to    an

undercover agent.              Further, the circumstances of the violation,

in which Drayton entered the agent’s car on his own initiative

without     the     confidential         informant,            discussed     pricing,        and

offered     to    sell    the    agent    even      more       cocaine,    show       that   the

decision by Drayton to commit the offense was his own preference

and not the product of government persuasion.                            See United States

v. Osborne, 935 F.2d 32, 38 (4th Cir. 1991).



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       Next, Drayton contends that the court improperly admitted

the agent’s testimony about jail call statements made by Drayton

and    another     individual,        and    failed        to    conduct    the      requisite

balancing test under Fed. R. Crim. P. 32.1.                              The decision to

admit hearsay evidence at a revocation hearing is reviewed for

abuse of discretion.             United States v. Doswell, 670 F.3d 526,

529    (4th     Cir.    2012).         Evidentiary          rulings      are     subject   to

harmless error review.               United States v. Johnson, 617 F.3d 286,

292 (4th Cir. 2010).            In reviewing the admission of hearsay in a

revocation hearing, “the proper harmlessness test must ensure

that    the    error     had    no    substantial          and    injurious       effect   or

influence on the outcome, not whether the error was harmless

beyond a reasonable doubt.”                 United States v. Ferguson, 752 F.3d

613, 618 (4th Cir. 2014) (internal quotation marks omitted).

       Upon our review, we find that assuming the statements in

question      to   be   hearsay,       their       admission      constitutes         harmless

error.     Drayton admitted that the charged violation conduct took

place,    and      as   noted    above,      there        was    ample     other     evidence

showing       predisposition.           Thus        even    without        the    challenged

testimony      describing       the    jail        call    statements,         the   evidence

supported the court’s rejection of Drayton’s entrapment defense

and its finding that he violated the terms of his supervised

release.



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     Accordingly, we affirm the district court’s judgment.                We

dispense   with     oral   argument   because     the    facts   and   legal

contentions   are   adequately   presented   in    the   materials     before

this court and argument would not aid the decisional process.


                                                                   AFFIRMED




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