18-1052
United States v. Guerrero

                                 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.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
29th day of April, two thousand nineteen.

Present:    AMALYA L. KEARSE,
            RALPH K. WINTER,
            ROSEMARY S. POOLER,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                   Appellee,

                            v.                                                18-1052-cr

JONATHAN GUERRERO,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:           Colleen P. Cassidy, Federal Defenders of New York, Inc., Appeals
                                   Bureau, New York, N.Y.

Appearing for Appellee:            Kristy Greenberg, Assistant United States Attorney (Anna M.
                                   Skotko, Assistant United States Attorney, on the brief), for
                                   Geoffrey S. Berman, United States Attorney for the Southern
                                   District of New York, New York, N.Y.

Appeal from the United States District Court for the Southern District of New York (McMahon,
C.J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Jonathan Guerrero appeals from the April 11, 2018 judgment of the United States District
Court for the Southern District of New York (McMahon, C.J.) revoking Guerrero’s supervised
release and sentencing him to 24 months’ imprisonment and three years’ supervised release. We
assume the parties’ familiarity with the underlying facts, procedural history, and specification of
issues for review.

        Guerrero’s supervised release was revoked when the district court concluded, following a
hearing, that Guerrero committed New York second-degree robbery, a felony, and New York
third-degree assault, a misdemeanor. The robbery victim did not testify at the hearing. Instead,
the police officer who took the victim’s statement testified that the victim’s mobile phone and
wallet were stolen. On appeal, Guerrero challenges only the finding that he committed a robbery,
arguing that the district court committed reversible error when it admitted the hearsay statement
regarding the stolen goods without finding good cause for admitting the hearsay statement.

        “Revocation proceedings are not deemed part of a criminal prosecution, and, therefore,
defendants in such proceedings are not entitled to ‘the full panoply of rights’ that criminal
defendants generally enjoy.” United States v. Carthen, 681 F.3d 94, 99 (2d Cir. 2012) (quoting
Morrissey v. Brewer, 408 U.S. 471, 480 (1972)). Defendants faced with revocation are entitled to
certain procedural protections under the Due Process Clause of the Constitution and Federal Rule
of Criminal Procedure 32.1. See United States v. Aspinall, 389 F.3d 332, 340 (2d Cir. 2004),
abrogation on other grounds recognized by United States v. Fleming, 397 F.3d 95, 99 n.5 (2d
Cir. 2005). A defendant is entitled to “an opportunity to appear, present evidence, and question
any adverse witness unless the court determines that the interest of justice does not require the
witness to appear.” Fed. R. Crim. P. 32.1(b)(2)(C); see also Morrissey, 408 U.S. at 489.

         We find no clear error in the district court’s conclusion that Guerrero committed a
robbery. Based solely on the events captured in the surveillance video introduced into evidence
at the revocation hearing, it is possible to draw the inference that items were taken from the
victim in the course of the assault being committed without relying on the hearsay testimony at
issue. Even assuming arguendo that the district court relied in part on the hearsay testimony, the
error is harmless. See Aspinall, 389 F.3d at 346 (“[A] district court’s failure to comply with the
interest-of-justice determination requirement . . . is subject to harmless-error analysis.”).

        We have examined the remainder of Guerrero’s arguments and find them to be without
merit. The judgment of the district court is hereby AFFIRMED.

                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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