       08-6088-cr
       USA v. Morton

                            UNITED STATES COURT OF APPEALS
                                  F OR T HE S ECOND C IRCUIT

                                       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 Daniel Patrick Moynihan
       United States Courthouse, 500 Pearl Street, in the City of
       New York, on the 2 nd day of February, two thousand and ten.

       Present: RICHARD C. WESLEY,
                GERARD E. LYNCH,
                              Circuit Judges,
                MARK R. KRAVITZ,
                              District Judge. *
       ________________________________________________

       UNITED STATES OF AMERICA,

                                Appellee,

                   - v. -                                      (08-6088-cr)

       RASHEEM WASHINGTON,
                          Defendant
       JAMES MORTON,
                          Defendant-Appellant.
       __________________________________________________


       Appearing for Appellant:             COLLEEN P. CASSIDY, of counsel,
                                            Federal Defenders of New York,
                                            New York, New York


             *
                The Honorable Mark R. Kravitz, of the United States District Court
       for the District of Connecticut, sitting by designation.

                                               1
     Appearing for Appellee:      JENNIFER EILEEN BURNS, Assistant
                                  United States Attorneys Office
                                  for the Southern District of New
                                  York, New York, New York.

          Appeal from the United States District Court for the
     Southern District of New York (Sullivan, J.).

 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the United States District

 3   Court for the Southern District of New York be AFFIRMED.

 4       Defendant, James Morton, appeals from a judgment entered

 5   on December 12, 2008 in the United States District Court for

 6   the Southern District of New York (Sullivan, J.) revoking

 7   Defendant’s term of supervised release and sentencing him to

 8   24 months’ imprisonment.   We presume the parties’

 9   familiarity with the underlying facts, the procedural

10   history of the case, and the issues on appeal.

11       Defendant was on supervised release pursuant to a

12   sentence from June 10, 2005, following his conviction on one

13   count of possession of crack-cocaine with intent to

14   distribute in violation of 28 U.S.C. §§ 841(a)(1) and

15   (b)(1)(C)).   On April 10, 2008, Defendant was released from

16   custody and began his term of supervised release.     On May 3,

17   2008, Defendant was again arrested and charged with criminal

18   sale of a controlled substance (to wit: crack cocaine).     On

19   July 28, 2008, the Probation Office submitted a Request for


                                    2
 1   Court Action charging Defendant with violation of the terms

 2   of his supervised release based on his arrest.         Following an

 3   evidentiary hearing on November 25 and December 9, 2008, the

 4   district court found that Defendant violated the terms of

 5   his release by selling crack cocaine.

 6       Where a district court finds that a defendant has

 7   violated the terms of his or her supervised release, we

 8   review that court’s factual findings for clear error and its

 9   ultimate conclusion that the terms of supervised release

10   were violated for abuse of discretion.       See United States v.

11   Carlton, 442 F.3d 802, 810 (2d Cir. 2006).

12       “Because revocation proceedings generally have not been

13   considered criminal prosecutions, they have not been subject

14   to the procedural safeguards, including the rights to trial

15   by jury and to accusations proved beyond a reasonable doubt,

16   associated with a criminal trial.”       Id. at 807.    The

17   district court was therefore only required to find that

18   Defendant violated the terms of his supervised release by a

19   preponderance of the evidence.       It relied principally on the

20   testimony of Detective Hernandez in that regard. Defendant

21   argues that the district court erred in relying on the

22   testimony of that single eyewitness.       We find that argument

23   unpersuasive.


                                      3
 1       The court found that Detective Hernandez had an

 2   unobstructed, well-lit view of the drug transaction from a

 3   distance of not more than fifty-feet, after which he kept

 4   the Defendant in his sight until he was apprehended by

 5   police only minutes later.   The court found Detective

 6   Hernandez’s testimony credible; we see nothing to suggest

 7   that conclusion was in error.

 8       Because the testimony of Detective Hernandez was

 9   sufficient to support a finding by a preponderance of the

10   evidence that Defendant engaged in the sale of crack

11   cocaine, the district court did not err in revoking

12   Defendant’s supervised release.     See United States v.

13   Frampton, 382 F.3d 213, 222 (2d Cir. 2004).

14       The Court has reviewed Defendant’s remaining arguments

15   and finds them to be without merit.     Accordingly, the

16   judgment of the district court is hereby AFFIRMED.

17                                For the Court
18                                Catherine O’Hagan Wolfe, Clerk
19
20
21




                                     4
