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United States v. Lloyd

May 27, 2009

UNITED STATES OF AMERICA
v.
ASHBERT S. LLOYD, JR., APPELLANT



On Appeal from the United States District Court for the District of the Virgin Islands. (D.C. No. 98-cr-00223). District Judge: Honorable Juan R. Sanchez.

The opinion of the court was delivered by: Hardiman, Circuit Judge

PRECEDENTIAL

Argued April 21, 2009

Before: BARRY, HARDIMAN and COWEN, Circuit Judges.

OPINION OF THE COURT

At issue in this appeal is hearsay evidence presented during Appellant Ashbert Lloyd's supervised release revocation hearing.

I.

While on supervised release for a crime he committed in the United States Virgin Islands, Lloyd pleaded guilty in Duval County, Florida to possession of a firearm by a convicted felon in violation of Florida law. After the Virgin Islands probation office was notified of Lloyd's guilty plea, the District Court summoned Lloyd to St. Thomas for a revocation hearing.

At the hearing, Lloyd refused to stipulate that he had violated his conditions of supervised release. Accordingly, the Government offered the following into evidence: (1) a violation report prepared by a Duval County probation officer; (2) a petition for a warrant to arrest Lloyd for violating the terms of his supervised release; (3) the testimony of the Virgin Islands probation officer who received the violation report; and (4) the judgment and plea agreement from Lloyd's state conviction.

The violation report relied on information provided by an officer of the Duval County Sheriff, who described a physical altercation between Lloyd and his pregnant girlfriend during which Lloyd brandished a gun at a passerby. Neither the probation officer who authored the report nor any representative of the Duval County Sheriff testified at Lloyd's revocation hearing.

Lloyd objected to both the violation report and the warrant petition, arguing that they were inadmissible hearsay. Without analysis or explanation, the District Court overruled Lloyd's objections after the Government's attorney responded that "this is a revocation hearing, and I think hearsay is permitted." App. 33.

Based on the evidence presented at the hearing, the District Court found that Lloyd violated the terms of his supervised release by: (1) committing aggravated domestic battery; (2) possessing a firearm; and (3) failing to notify his probation officer within 72 hours after arrest or questioning by a law enforcement officer. The aggravated domestic battery is a Grade A violation under the United States Sentencing Guidelines (USSG); possession of the firearm is a Grade B violation; and the failure to notify is a Grade C violation.*fn1

Section 7B1.4 of the Guidelines establishes imprisonment ranges upon revocation of supervised release that take into account the grade of violation and the violator's criminal history. Because one who commits multiple violations is sentenced based on the most severe violation, see USSG ยง 7B1.1, Lloyd's Guidelines range of 12-18 months was dictated by his Grade A violation for aggravated ...


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