                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUL 7 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   16-10161

              Plaintiff-Appellee,                D.C. No.
                                                 2:08-cr-00048-RLH-RJJ-1
 v.

JOHN A. HUDSON,                                  MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Roger L. Hunt, District Judge, Presiding

                       Argued and Submitted April 20, 2017
                            San Francisco, California

Before: PAEZ and IKUTA, Circuit Judges, and FABER,** District Judge.

      Appellant John Hudson (“Hudson”) appeals the revocation of his supervised

release term, which was the result of a Probation Department search of his home




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
that uncovered a gun and other contraband. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      We review for abuse of discretion the denial of a motion to recuse, Yagman

v. Republic Ins., 987 F.2d 622, 626 (9th Cir. 1993), the decision to revoke a term of

supervised release, United States v. Harvey, 659 F.3d 1272, 1274 (9th Cir. 2011),

and the substantive reasonableness of a sentence, United States v. Overton, 573

F.3d 679, 700 (9th Cir. 2009). By contrast, whether a defendant’s due process

rights were violated at a revocation hearing is a mixed question of fact and law that

we review de novo. United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008). “A

due process violation at a revocation proceeding is subject to harmless error

analysis.” Id.

      1. The district court did not abuse its discretion in denying the motion for

recusal. A federal judge must recuse himself “in any proceeding in which his

impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). But ex parte

communications with probation officers, In re Complaint of Judicial Misconduct,

583 F.3d 597, 597 (9th Cir. 2009), opinions, rulings based on the proceedings, a

judge’s questioning during oral arguments, and a judge’s “expressions of

impatience, dissatisfaction, annoyance, and even anger” do not typically warrant

recusal, Liteky v. United States, 510 U.S. 540, 554–56 (1994). Although, here, the


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proceedings below were often tense and antagonistic, the judge’s actions were

insufficient to require recusal.

      2. Nor did the district court abuse its discretion in revoking Hudson’s term

of supervised release based on his constructive possession of the gun and other

contraband. “In order to prove constructive possession of property, the

government must demonstrate that the defendant both knows of the presence of the

contraband and has power to exercise dominion and control over it.” United States

v. Rodriguez, 761 F.2d 1339, 1341 (9th Cir. 1985). “[V]iewing the evidence in the

light most favorable to the government,” United States v. Aquino, 794 F.3d 1033,

1036 (9th Cir. 2015) (internal citations and quotation omitted), the government

carried its burden to show by a preponderance of the evidence that Hudson knew of

the gun and other contraband found in the master bedroom closet of the house he

shared with his girlfriend.

      3. Additionally, the district court did not violate any federal rules or

Hudson’s Fifth Amendment rights when it provided a limited portion of the

Probation Department’s chronological records to him. When determining whether

a releasee has had “a fair and meaningful opportunity” to exercise his Fifth

Amendment confrontation rights, “we employ ‘a process of balancing the

releasee’s right to confrontation against the Government’s good cause for denying


                                          3
it.’” United States v. Martin, 984 F.2d 308, 310 (9th Cir. 1993) (quoting United

States v. Simmons, 812 F.2d 561, 564 (9th Cir. 1987)) (internal alteration omitted).

Given that Hudson was afforded the opportunity to cross-examine witnesses who

composed the chronologies, the unreleased chronologies did not form the basis of

the district court’s ultimate ruling, and the unreleased chronologies had little, if

any, impact on consequences of the court’s ruling, id. at 311–12, the balance

weighs in the Government’s favor. Moreover, even if Hudson could have used the

chronologies to impeach Officer Powell’s testimony, there is no dispute that

Officer Goldner, who also testified, found the gun in the closet.

      4. Finally, the district court did not abuse its discretion when sentencing

Hudson. Whether the sentence imposed is substantively reasonable turns on

“whether the record as a whole reflects rational and meaningful consideration of

the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Ruiz-Apolonio,

657 F.3d 907, 911 (9th Cir. 2011). The district court touched on multiple §

3553(a) factors, including the nature of the offense, the need for the sentence

imposed, and the lack of any reason to depart upward from the Sentencing

Guidelines. It was therefore not an abuse of discretion to sentence Hudson to 12

months, which was within the guidelines’ range of 8 to 14 months.

      AFFIRMED.


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