Argued: August 29, 2016.
appeal from a judgment of the United States District Court
for the Southern District of New York (Preska, C.J.)
revoking supervised release, defendant challenges (1) the
district court's statutory authority under 18 U.S.C.
§ 3583(e) to revoke supervision based on conduct that
had already prompted a modification in the conditions of his
supervision; and (2) its decision, pursuant to Fed. R. Crim.
P. 32.1(b)(2)(C), to consider victim hearsay statements in
adjudicating a violation charge of new criminal conduct.
Matthew W. Brissenden, Matthew W. Brissenden, P.C., Garden
City, New York, for Defendant-Appellant.
Jennifer L. Gachiri, Assistant United States Attorney (Thomas
McKay, Karl N. Metzner, Assistant United States Attorneys, on
the brief), for Preet Bharara, United States Attorney for the
Southern District of New York, New York, New York, for
Before: Newman, Calabresi, Raggi, Circuit Judges.
Raggi, Circuit Judge:
a guilty plea, defendant Troy Harris was convicted in 2001 in
the United States District Court for the Southern District of
New York (Robert P. Patterson, Judge) of conspiracy
to traffic in narcotics, see 21 U.S.C. §§
841(b)(1)(A), 846, for which crime he was sentenced to 188
months' imprisonment and five years' supervised
release. See United States v. Harris, No.
00-CR-00105 (RPP) (S.D.N.Y. Feb. 14, 2001), ECF No.
Harris now appeals from a judgment of the same court (Loretta
A. Preska, Chief Judge) entered on May 14, 2015,
revoking his supervised release and imposing an additional
prison term of 27 months based on a finding that he had
engaged in new criminal conduct while on federal supervision,
specifically, assault, as proscribed by New York Penal Law
§ 120.00(1), and narcotics distribution, in violation of
New York Penal Law § 220.39. Harris challenges both
grounds for revocation.
narcotics trafficking, Harris does not dispute the alleged
conduct. Instead, for the first time on appeal, he challenges
the district court's statutory authority to revoke
supervision based on conduct that had already prompted it to
modify the terms of his supervision. Harris argues that 18
U.S.C. § 3583(e) confers modification and revocation
authority in the disjunctive, so that once a court exercises
one (here, modification) in response to particular conduct,
it cannot exercise the other (revocation) with respect to
that same conduct.
assault, Harris argues that the district court impermissibly
considered victim hearsay in making its preponderance finding
that he engaged in such new criminal conduct while on federal
we conclude that both arguments fail on the merits, we affirm
the challenged revocation judgment.
began serving the five-year supervision component of his 2001
federal sentence on March 18, 2011. That supervision was
subject to certain conditions, three of which are relevant
here: that Harris (1) not commit another federal, state, or
local crime; (2) truthfully answer all probation inquiries;
and (3) notify his probation officer ten days prior to any
change in residence.
Initial Noncompliance Report: Assault
August 26, 2014, three years into Harris's supervision
term, the United States Probation Department for the Southern
District of New York ("Probation") filed a report
notifying Judge Patterson that Harris had been arrested by
the New York City Police Department ("NYPD") based
on a recent complaint filed by a woman who stated that Harris
had "struck her in the face with a closed fist after she
confronted him for smacking her on her buttocks during an
event they were attending." App'x 26. Probation
reported that the offense-third-degree assault, see
N.Y. Penal Law § 120.00(1)-represented a Class A
misdemeanor and a Grade C violation of supervised release.
Nevertheless, because the state case had been dismissed when
the complainant declined to press criminal charges, Probation
recommended that no action be taken with respect to
Harris's federal supervision. The district court accepted
the recommendation the following day, August 27, 2014.
Second Noncompliance Report: Narcotics
than three weeks later, on September 11, 2014, Probation
filed a second noncompliance report notifying Judge Patterson
of Harris's September 2, 2014 NYPD arrest, this time for
third-degree criminal sale of a controlled substance,
see N.Y. Penal Law § 220.39, based on police
observations of Harris exchanging crack cocaine for money.
Probation recommended, and Harris agreed to, a modification
of supervision to add a search condition, which the district
court ordered on September 15, 2014.
Violation Warrant and Revocation Petition
months later, on November 14, 2014, Probation determined that
Harris was in violation of the supervision condition
requiring that he provide advance notice of any change in
residence. On that day, Probation conducted an unannounced
visit to Harris's reported residence, the apartment of
his maternal aunt. Not only was Harris not present, but a
search also revealed that he had "little to no
belongings in the apartment." App'x 57. When
Probation reached Harris by phone, he stated that he was at
his uncle's apartment. After some initial hesitation, he
provided the building's address but refused to identify
the apartment number.
Patterson was advised of these facts the same day, and
promptly issued an arrest warrant based on four alleged
violations of supervised release: (1) failure truthfully to
answer Probation inquiries, (2) failure to notify Probation
of a change in residence, (3) selling narcotics in violation
of state law, and (4) committing third-degree assault in
violation of state law. The United States Marshal executed
the warrant and produced Harris in court later that day. On
consent, Harris was released pending a hearing on the
violation charges, subject to additional supervision
conditions of home detention and electronic monitoring.
November 17, 2014, Probation formally petitioned for
revocation of Harris's supervised release based on the
four alleged violations. The petition advised that, insofar
as one of the violations involved possession of narcotics,
revocation was mandatory under 18 U.S.C. § 3583(g).
Further, because (1) Harris had pleaded guilty to a Class A
felony, (2) the alleged narcotics offense constituted a Grade
A supervision violation, and (3) Harris had a Criminal
History Category of II, his recommended Guidelines sentencing
range for that violation was 27 to 33 months'
imprisonment, see U.S.S.G. § 7B1.4-
approximately half the statutory 5-year maximum, see
18 U.S.C. § 3583(e)(3). Probation explained that the
other three allegations pertained to Grade C violations of
supervision, which-given Harris's Criminal History
Category of II-corresponded to a recommended Guidelines
sentencing range of 4 to 10 months' imprisonment.
See U.S.S.G. § 7B1.4. Probation recommended
that Harris be sentenced to 4 months' imprisonment, the
low end of this lesser range, to be followed by an additional
one-year term of supervised release.
February 2015, Harris's case was reassigned to Chief
Judge Preska, who conducted a revocation hearing on the
narcotics- and assault-based charges on April 2,
Government's Motion To Admit Victim ...