United States v. Boyd

• Decision Date: 02 July 2015
• Docket Number: No. 14–2714.,14–2714.
• Citation: 792 F.3d 916
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Keisha Leighann BOYD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

792 F.3d 916

UNITED STATES of America, Plaintiff–Appellee
v.
Keisha Leighann BOYD, Defendant–Appellant.

No. 14–2714.

United States Court of Appeals, Eighth Circuit.

Submitted: Jan. 16, 2015.
Filed: July 2, 2015.

792 F.3d 917

Justin Eisele, argued, Greenbelt, MD, for Appellant.

Chris Givens, AUSA, argued, Anne E. Gardner, AUSA, On the brief, Little Rock, AR, for Appellee.

792 F.3d 918

Before WOLLMAN, SMITH, and SHEPHERD, Circuit Judges.

Opinion

SHEPHERD, Circuit Judge.

Keisha Leighann Boyd appeared before the district court at a sentencing revocation hearing. Boyd faced revocation based on multiple technical violations of her supervised release and based on an allegation of burglary or theft. The district court determined that Boyd had committed a Grade A violation and sentenced her to 19 months imprisonment. We reverse and remand for further proceedings.

I.

Boyd was convicted of aiding and abetting the distribution of methamphetamine. After one unsuccessful attempt at supervised release that resulted in additional prison time, Boyd was again placed on supervised release in January 2014. In May 2014, the government sought to revoke Boyd's supervised release. At the revocation hearing, Jay Hudson, Boyd's supervising probation officer, testified he had been assigned only in May 2014 to supervise Boyd after Michelle Sims, Boyd's previous supervising probation officer, retired.

Officer Hudson began testifying about Boyd's alleged violations of supervised release. Boyd objected under Federal Rule of Criminal Procedure 31.2 because Hudson testified based on the file maintained by the probation office. Boyd argued “just because the probation officer [Sims] is not working there does not mean she is not available” and “this witness [Hudson] has no personal knowledge of whether [the underlying violations] did or did not happen.” (Revoc. Tr. at 11 and 13.) The district court overruled the objections, holding that because Officer Hudson, the now-supervising probation officer, was available to testify concerning the contents of Boyd's probation file, it was unnecessary to “go get Michelle Sims off retirement and subpoena her a couple of hundred miles away to come into the courtroom and testify about it.” (Revoc. Tr. at 28.)

Jonesboro Police Officer Brandon King testified that Jonesboro police officers conducted a traffic stop of Boyd's vehicle based on a tip Officer King had received indicating Boyd was involved with stolen property. During the stop, Boyd admitted to Officer King that there was stolen property in the vehicle. She also admitted knowing additional stolen property was at a local motel. Boyd escorted the officers to the motel where they recovered additional stolen property. Boyd was charged in state court with burglary and theft of property.

After hearing Officer King's testimony, the district court determined Boyd's personal knowledge of the stolen property “would indicate that she was involved with it in some way.” (Revoc. Tr. at 27.) After hearing arguments from the parties concerning whether the government had proven burglary or just theft, the district court found that Boyd had committed a Grade A violation of her supervised release, which has a recommended revocation range of 15–21 months imprisonment. See United States Sentencing Commission, Guidelines Manual, § 7B1.4(a) (stating range of imprisonment for a Grade A violation with a Category II criminal history is 15–21 months). Based on that violation, the district court sentenced Boyd to 19 months imprisonment.

Boyd appeals, arguing (1) the district court violated her confrontation rights when it permitted Officer Hudson to testify in the place of Officer Sims without first determining that Officer Sims was unavailable, and (2) the district court abused its discretion in determining Boyd committed a Grade A violation when there was no evidence she had committed a burglary

792 F.3d 919

and no evidence as to the value of the property, which would be necessary for a felony theft conviction.¹ We reject Boyd's first argument but agree with her second. Accordingly, we reverse the district court's finding of a revocation violation and remand for further proceedings.

II.

The district court has the discretion to revoke supervised release if the government proves by a preponderance of the evidence that the defendant violated a condition of supervised release. 18 U.S.C. § 3583(e)(3) (“The court may ... revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release ... if the court ... finds by a preponderance of the evidence that the defendant violated a condition of supervised release.”). “We review the district court's decision to revoke supervised release for an abuse of discretion.” United States v. Ahlemeier, 391 F.3d 915, 919 (8th Cir.2004). “[T]he court's subsidiary factfinding as to whether or not a violation occurred is reviewed for clear error.” United States v. Carothers, ...