USCA4 Appeal: 22-4596 Doc: 22 Filed: 02/28/2024 Pg: 1 of 7

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4596

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN DEE DUGGER,

Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:11-cr-00234-TDS-3)

Submitted: February 8, 2024 Decided: February 28, 2024

Before KING and HEYTENS, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Todd A. Smith, SMITH GILES PLLC, Graham, North Carolina, for Appellant. Sandra J. Hairston, United States Attorney, Greensboro, North Carolina, Margaret M. Reece, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4596 Doc: 22 Filed: 02/28/2024 Pg: 2 of 7

PER CURIAM:

While on supervised release following his 157-month prison sentence for

conspiracy to distribute methamphetamine, John Dee Dugger was alleged to have violated

the terms of his supervision by, among other matters, committing new criminal conduct in

possessing marijuana, for which he was charged in North Carolina state court with the

crime of possession with intent to sell or distribute marijuana. Following a hearing at which

probation officers involved in the search of Dugger’s residence testified, the district court

calculated Dugger’s advisory policy statement imprisonment range under the Sentencing

Guidelines at 30 to 37 months, revoked his supervised release, and sentenced him to 35

months’ imprisonment, followed by a 24-month term of supervised release. On appeal,

Dugger argues that the district court erred by considering hearsay from an anonymous

tipster in deciding whether to revoke his supervised release and erred in finding he

committed a crime that is a controlled substance offense and in punishing him as a Grade

A violator of supervised release. We affirm.

We review a district court’s evidentiary decisions in a revocation hearing for abuse

of discretion. United States v. Combs,

, 505 (4th Cir. 2022). We “will only

overturn an evidentiary ruling that is arbitrary and irrational.” United States v. Abdallah,

(4th Cir. 2018) (internal quotation marks omitted).

Testifying about the search of Dugger’s residence, Dugger’s supervising probation

officer Nicholas Bullock explained that he requested the search after an anonymous tipster

stated that Dugger was dealing drugs, kept the drugs in holes in his back yard, and would

2 USCA4 Appeal: 22-4596 Doc: 22 Filed: 02/28/2024 Pg: 3 of 7

blame his children if he was caught. Dugger objected to these statements from the tipster

as inadmissible hearsay.

“[A] person charged with a violation of the terms of supervised release ‘is entitled

to . . . an opportunity to appear, present evidence, and question any adverse witness unless

the court determines that the interest of justice does not require the witness to appear.’”

Combs, 36 F.4th at 505-06 (quoting Fed. R. Crim. P. 32.1(b)(2)(C)). Under subsection (C),

prior to admitting hearsay evidence—that is, an out-of-court statement offered to prove the

truth of the matter asserted in the statement, Fed. R. Evid. 801(c)—in a revocation hearing,

“the district court must balance the releasee’s interest in confronting an adverse witness

against any proffered good cause for denying such confrontation.” Id. at 506 (internal

quotation marks omitted). “Reliability is a critical factor in that balancing test.”

Id. (cleaned up). However, out-of-court statements offered only to prove their effect on

the listener rather than the truth of the matters asserted are not hearsay. United States v.

Simmons,

(4th Cir. 2021).

Although the Government offered the tipster’s statements for both the truth of the

matters asserted and for the effect of those statements on Bullock, the district court

admitted and considered them at the point of Dugger’s objection for the non-hearsay

purpose of explaining why Bullock acted the way he did. The court reserved a ruling on

considering the statements for the truth of the matters asserted. After the Government

concluded its evidentiary presentation, Dugger argued that the tip was not reliable and that,

because he could not verify the statements or cross-examine the tipster, he was continuing

3 USCA4 Appeal: 22-4596 Doc: 22 Filed: 02/28/2024 Pg: 4 of 7

to object to the statements coming into evidence for any purpose other than being a reason

why probation officers went to his residence.

When announcing its revocation findings, the district court mentioned the

anonymous tip but stated only that the tip explained why the probation officers visited

Dugger’s residence. The district court’s consideration of the statements from the

anonymous tipster as an explanation for why the probation officers went to Dugger’s

residence was a permissible, non-hearsay use of this evidence and did not contravene

Fed. R. Crim P. 32.1(b)(2). We reject as belied by the record Dugger’s argument that the

district court improperly considered the tipster’s statements as substantive evidence that he

violated the terms of his supervised release. We also reject as without merit Dugger’s

argument that it is not possible to determine how much weight the district court afforded

this evidence. We thus discern no abuse of discretion by the district court in this regard.

Turning to Dugger’s sentencing challenge, a district court has broad discretion when

imposing a sentence upon revocation of supervised release, and we will affirm a revocation

sentence if it is within the statutory maximum and is not plainly unreasonable. United

States v. Patterson,

(4th Cir. 2020). To consider whether a revocation

sentence is plainly unreasonable, we must first determine whether the sentence is

procedurally or substantively unreasonable.

A revocation sentence is procedurally

reasonable if the district court adequately explains the chosen sentence after considering

the Chapter Seven policy statement range under the Guidelines and the applicable

(a) sentencing factors.

4 USCA4 Appeal: 22-4596 Doc: 22 Filed: 02/28/2024 Pg: 5 of 7

Dugger challenges the district court’s procedural calculation of the advisory policy

statement imprisonment range, arguing that the court erred in finding he violated his

supervised release by committing a controlled substance offense that is a Grade A violation

of supervised release because the evidence adduced does not support such a finding. We

evaluate the district court’s factual determinations on this score for clear error. United

States v. Dowell,

(4th Cir. 2014). Under clear-error review, our “task is

to determine whether the district court’s account of the evidence is plausible in light of the

record viewed in its entirety.” Patterson,

(internal quotation marks

omitted). “This standard plainly does not entitle [this] court to reverse the [district court’s]

finding . . . simply because it is convinced that it would have decided the case differently.”

(internal quotation marks omitted).

A Grade A violation of supervised release includes “conduct constituting . . . a

federal, state, or local offense punishable by a term of imprisonment exceeding one year

that . . . is a controlled substance offense.” U.S. Sentencing Guidelines Manual

§ 7B1.1(a)(1), p.s. A “controlled substance offense” under this policy statement includes

an offense under state law punishable by imprisonment for a term exceeding one year that

“prohibits the . . . possession of a controlled substance . . . with intent to . . . distribute[] or

dispense” it. USSG § 4B1.2(b)(1). Under North Carolina state law, marijuana is a

controlled substance, and possessing it with intent to sell or deliver it is a felony punishable

by imprisonment for a term exceeding one year.

, 90-95(a)(1),

(b)(2). Section 90-95(a)(1) is a categorical match with the Guidelines’ definition of a

controlled substance offense. United States v. Miller,

(4th Cir. 2023).

5 USCA4 Appeal: 22-4596 Doc: 22 Filed: 02/28/2024 Pg: 6 of 7

We conclude based on the testimony adduced at the revocation hearing that the

district court credited that there was sufficient evidence to support the conclusion that

Dugger possessed marijuana with intent to sell or deliver it, a Grade A violation of

supervised release. Dugger argues on appeal that the district court erred because no

evidence showed the substances recovered during the search of his residence were his and

very little evidence was presented that they were illegal. We reject these arguments.

Where, as here, a district court’s finding is based on its decision to credit the testimony of

witnesses, each of whom has told “a coherent and facially plausible story that is not

contradicted by extrinsic evidence, that finding, if not internally inconsistent, can virtually

never amount to clear error.” Patterson,

(internal quotation marks

omitted). Indeed, “overturning a credibility determination is usually reserved for extreme

situations wherein, for example, it would have been physically impossible for the witness

to observe what he described.”

(cleaned up). None of the potential deficiencies Dugger

identifies relative to possession or ownership of the substances and whether they were

marijuana make the situation described by the testifying officers physically impossible or

describe a situation “so internally inconsistent or implausible on its face that it would

require us to reverse the district court’s credibility determination.”

. In light of

the deference we afford to the district court’s credibility determinations and findings, the

plausibility of its conclusion that Dugger committed a controlled substance offense

violating his supervised release means we may not overturn its findings.

6 USCA4 Appeal: 22-4596 Doc: 22 Filed: 02/28/2024 Pg: 7 of 7

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

7