                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-4115


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

          v.

DAVID M. KISSI,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:05-cr-00254-AW-1)


Submitted:   September 26, 2013             Decided:   October 17, 2013


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Affirmed in part; vacated and remanded in part by unpublished
per curiam opinion.


Gary A. Ticknor, Columbia, Maryland, for Appellant.   Rod J.
Rosenstein,  United States  Attorney,  Kristi  N.   O’Malley,
Assistant United States Attorney, Greenbelt, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              David      Kissi       appeals       the      district         court’s         order

revoking his term of supervised release and imposing a ten-month

term     of     imprisonment,         followed       by     an    additional           term    of

supervised release.            Kissi first asserts that the district court

erred in denying his motion for a continuance/substitution of

counsel,      forcing        him    to     represent      himself.           Prior      to    the

December      2012     revocation        hearing,     Kissi       had    hired    and        fired

private counsel and the federal public defender appointed to

represent him was allowed to withdraw.                           Finally, the district

court    appointed       Christopher         Nieto     to   represent          Kissi    at     the

scheduled hearing.             One week prior to the revocation hearing,

the court denied Nieto’s motion to withdraw and ordered that

“Counsel      who      was    appointed       by    the     Court       to   represent        the

Defendant       will    continue      to    serve    as     appointed        counsel     or    as

[standby      counsel],        in     the    event       that     Defendant       wishes       to

represent       himself.           Should    Defendant      secure       his    own     private

counsel to represent Defendant at the December 17, 2012 hearing,

the Court will revisit the motion to withdraw.”                              Kissi did not

obtain private counsel prior to the hearing.

              At the beginning of the hearing, Kissi informed the

court that he had “already fired” Nieto and asked the court to

“give me time beyond today so I go and get myself a lawyer.”

The     court    reminded          Kissi    that     it     had     already       given       him

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additional time to do so, but that he had failed.                      The court

noted that Kissi’s difficulties with his attorney were caused by

Kissi’s refusal to cooperate.               The court ultimately gave Kissi

the choice to work with court-appointed counsel or represent

himself,     with   counsel       available      as   standby    counsel.        The

transcript     reveals    that,       although   Kissi   handled    part    of   the

hearing pro se, Nieto actually represented him for the majority

of the hearing.

             We review a district court’s ruling on a motion to

substitute counsel for abuse of discretion.                     United States v.

Horton, 693 F.3d 463, 466 (4th Cir. 2012).                      While a criminal

defendant has a right to counsel of his own choosing, that right

is not absolute.       Powell v. Alabama, 287 U.S. 45, 52-53 (1932);

Sampley v. Attorney Gen. of N.C., 786 F.2d 610, 612 (4th Cir.

1986).     In particular, a defendant’s right to choose his own

counsel is limited so as not to “deprive courts of the exercise

of   their    inherent        power    to   control    the   administration      of

justice.”     United States v. Gallop, 838 F.2d 105, 108 (4th Cir.

1988); see United States v. Gonzalez-Lopez, 548 U.S. 140, 152

(2006) (“[A] trial court[] [has] wide latitude in balancing the

right to counsel of choice against the needs of fairness and

against      demands     of     its    calendar[.]”)     (internal     citations

omitted).      Our review of the record leads us to conclude that



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the district court did not abuse its discretion when it denied

Kissi’s third request for new counsel.

              Next, Kissi argues that the district court erred by

permitting hearsay evidence in the form of emails from district

court Judge Messitte.                A defendant at a revocation hearing has

the    right     “to     confront      and       cross-examine           adverse      witnesses

(unless the hearing officer specifically finds good cause for

not allowing confrontation).”                         Morrissey v. Brewer, 408 U.S.

471, 489 (1972).           The parameters of this right are established

in Fed. R. Crim. P. 32.1(b)(2)(C), which states that a defendant

is entitled to “question any adverse witness unless the court

determines that the interest of justice does not require the

witness to appear.”            United States v. Doswell, 670 F.3d 526, 530

(4th   Cir.     2012).         Doswell       requires         that    the      district     court

“balance       the     releasee’s      interest          in    confronting          an   adverse

witness    against       any     proffered            good    cause      for      denying      such

confrontation.”           Id.         If    the       evidence      is    reliable       and    the

Government’s         explanation           for    not    producing          the    witness       is

satisfactory, the hearsay evidence will likely be admissible.

Id. at 531.            Applying these standards, we conclude that the

district   court        did    not    abuse       its    discretion         in    allowing      the

emails as evidence without Judge Messitte’s live testimony.

              Kissi       next        claims          that     he        was      denied        his

constitutional         right     to    a     jury       trial.           Because     revocation

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proceedings are not stages of a criminal prosecution, there is

no constitutional right to a jury trial.                                 See, e.g., United

States v. Carlton, 442 F.3d 802, 807 (2d Cir. 2006) (“[T]he

‘full      panoply       of    rights’        due       a    defendant        in     a    criminal

prosecution does not apply to revocation hearings for parole,

for probation, or for supervised release.” (citations omitted));

United States v. Work, 409 F.3d 484, 491-92 (1st Cir. 2005)

(Sixth     Amendment’s         right     to    jury          trial    does     not       extend    to

supervised release revocation proceedings).

             In his fourth claim, Kissi argues that the Government

failed to prove that he possessed the necessary mens rea element

of   the    violations         alleged        in       the    petitions       to     revoke       his

supervised release.             At the hearing, Kissi argued at length that

he believed the underlying prefiling injunction at issue did not

prohibit him from filing the civil actions which resulted in the

contempt convictions.             As the district court concluded, however,

Kissi       was      a        “willful        violator”              notwithstanding           “his

misperception and his mistaken beliefs.”

             Next, Kissi asserts that the district court’s judgment

is inconsistent with the charged violations.                                 Kissi apparently

believes     that    the       district       court’s         findings       with    respect       to

specific     violations          are   inconsistent               with   the       petitions      to

revoke his supervised release filed in July and August 2012.

Specifically,        the      petitions       list          the   original     conditions          of

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Kissi’s supervised release in numbered paragraphs (1) through

(9)—the grounds for revoking supervised release were listed in

unnumbered paragraphs, each beginning with “WHEREAS.”                              However,

it is clear that the district court’s findings refer to the

third and fourth unnumbered paragraphs in the July petition and

the first unnumbered paragraph in the August petition.                                  It is

equally clear from the transcript that there was no confusion as

to which violation the court was referring.

            Finally,         Kissi      raises       several      challenges        to    the

reasonableness        of    his    sentence.         A   district     court       has    broad

discretion      to    impose      a    sentence      upon   revoking       a   defendant’s

supervised release.               United States v. Thompson, 595 F.3d 544,

547 (4th Cir. 2010).              This court will affirm a sentence imposed

after    revocation        of     supervised      release    if     it    is     within    the

applicable      statutory         maximum    and     not    “plainly       unreasonable.”

United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir.

2006).    In determining whether a revocation sentence is plainly

unreasonable,        this       court    first       assesses       the    sentence       for

unreasonableness,          “follow[ing]          generally      the       procedural      and

substantive considerations that [it] employ[s] in [its] review

of original sentences.”               Id. at 438.

            A        supervised         release          revocation        sentence        is

procedurally         reasonable         if     the       district        court     properly

calculates the Guidelines’ Chapter 7 advisory policy statement

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range and explains the sentence adequately after considering the

policy statements and the 18 U.S.C. § 3553(a) (2006) factors it

is   permitted      to    consider     in    a    supervised       release         revocation

case.     18 U.S.C.A. § 3583(e) (West 2006 & Supp. 2012); Thompson,

595 F.3d at 547; Crudup, 461 F.3d at 439.                       A revocation sentence

is   substantively        reasonable        if    the       district     court      states    a

proper basis for concluding the defendant should receive the

sentence imposed, up to the statutory maximum.                         Crudup, 461 F.3d

at   440.        Only      if   a     sentence         is     found    procedurally          or

substantively unreasonable will this Court “then decide whether

the sentence is plainly unreasonable.”                        Id. at 439.         A sentence

is   plainly        unreasonable       if        it     is     clearly       or    obviously

unreasonable.       Id.

             We conclude that Kissi’s sentence is both procedurally

and substantively reasonable, with one exception noted below.

The district court properly calculated the Guidelines’ Chapter 7

advisory     policy       statement     range         and     explained      the    sentence

thoroughly after considering the policy statements and § 3553(a)

factors.      And, the district court stated a proper basis for

concluding that Kissi should receive the sentence imposed.

             Nevertheless, Kissi first argues that his sentence is

unreasonable        because     the    court          added    additional          supervised

release     after    initially        finding         that    Kissi    was    not     a   good

candidate for further supervised release.                          Although the court

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did state, at the revocation hearing in December, that it was

likely to terminate supervised release, Kissi’s conduct after

the hearing and prior to sentencing on February 4, 2013, caused

the court to change its mind.                      Specifically, Kissi not only

failed to dismiss the three lawsuits he had filed which were the

subject of the contempt convictions, but also filed a new suit

against   the   attorney      who   represented          him   at   the    revocation

hearing and continued to file repetitive and vexatious motions

in this and other cases.

            Next, Kissi asserts, for the first time on appeal,

that the district court erred in finding that his was a Grade B

violation     and   not   a   Grade       C       violation.    Because      criminal

contempt has no statutory maximum sentence, it is not classified

as   either     a   felony     or     a       misdemeanor.          See     Cheff    v.

Schnackenberg, 384 U.S. 373, 380 (1966) (defining the crime of

contempt as an “offense sui generis,” neither a felony nor a

misdemeanor).       However, because “[t]he length of the sentence

rests in the sound discretion of the trial judge,” United States

v. Seavers, 472 F.2d 607, 611 (6th Cir. 1973), we find no error

in its treatment as a felony for sentencing purposes.

            Finally, Kissi argues that the district court plainly

erred when it continued the original condition of supervised

release requiring that he reimburse the court funds paid to his

counsel   during    trial.      The       Government       concedes       this   issue,

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citing   United    States       v.    Moore,      666    F.3d    313,    322   (4th    Cir.

2012), and notes that it filed a motion in the district court to

modify the conditions of supervised release to release this one

condition.       The district court has not ruled on the motion.

Therefore, we vacate this portion of the judgment and remand to

the   district    court    to        modify    the      conditions      of   release   and

remove this condition.

            In all other respects, we affirm the district court’s

judgment.     In light of this disposition, we deny Kissi’s motion

for release pending appeal as well as his motion for leave to

file a supplemental pro se brief.                    We deny counsel’s motion to

withdraw at this time.           This court requires that counsel inform

Kissi, in writing, of the right to petition the Supreme Court of

the United States for further review.                     If Kissi requests that a

petition be filed, but counsel believes that such a petition

would be frivolous, then counsel may again move in this court

for leave to withdraw from representation.                           Counsel’s motion

must state that a copy thereof was served on Kissi.

             We dispense with oral argument because the facts and

legal contentions are adequately represented in the materials

before   this    court    and    argument         would    not   aid    the    decisional

process.

                                                                AFFIRMED IN PART;
                                                     VACATED AND REMANDED IN PART


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