# United States Court of Appeals **for the Fifth Circuit**

No. 20-50225

United States of America,
Plaintiff—Appellee ,

versus Kevin Chance McElroy,
Defendant—Appellant

.

Appeal from the United States District Court for the Western District of Texas USDC No. 7:11-CR-63-5

Before Owen, Chief Judge , and Jolly and Dennis, Circuit Judges

. Per Curiam: * Kevin Chance McElroy appeals the di strict court’s revocation of his term of supervised release, arguing that the district court erred by admitting a positive urinalysis repo rt despite the Government’s failure to adhere to the procedures set forth in United States v. Grandlund , 1 and by admitting the

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.

1 71 F.3d 507 (5th Cir. 1995), clarified by 77 F.3d 811 (5th Cir. 1996) (per curiam). United States Court of Appeals Fifth Circuit 

### FILED June 22, 2021 Lyle W. Cayce Clerk Case: 20-50225 Document: 00515909282 Page: 1 Date Filed: 06/22/2021No. 20-50225

2 report in a revocation proceeding withou t a finding of good cause to disallow his right to confrontation. McElroy also challenges the sufficiency of the evidence supporting the district court’ s finding that he possessed cocaine in violation of his conditions of supervision. We affirm.

I In 2011, McElroy pleaded guilty to conspiracy to possess with intent to manufacture methamphetamine and was sentenced to 84 months of imprisonment—later reduced to 65 months—and three years of supervised release. McElroy began serving his te rm of supervised release in January 2018. In August 2018, the probation offi ce filed a report stating that McElroy had admitted to using crack cocaine. No action was taken. In July 2019, after a random urinalysis was positive for methamphetamine, McElroy admitted to using the drug for a two-week peri od and consented to a modification of the conditions of his supervised releas e. Accordingly, the district court added a condition to McElroy’s supervis ion requiring him to participate in inpatient substance abuse treatment, including testing during and after completion of the program, and to ab stain from the use of alcohol and all intoxicants. Upon arriva l at drug treatment, McEl roy admitted that he had recently used methamphetamine, and hi s probation officer filed a report accordingly. The court took no action and afforded McElroy the opportunity to complete inpatient treatment, which he did in October 2019. In January 2020, McElroy’s probation officer filed a Petition for Warrant or Summons for O ffender Under Supervision, alleging that McElroy had violated conditions of his supervis ed release by possessing a controlled substance, and requesting that McElro y’s supervised release be revoked. The officer later filed an amended peti tion alleging that McElroy had a positive urinalysis result and that he denied any drug use. The urine sample was confirmed positive for co caine by Alere Toxicology. Case: 20-50225 Document: 00515909282 Page: 2 Date Filed: 06/22/2021No. 20-50225

3 During the revocation hearing, the Government sought to admit a three-page exhibit comprised of the urin alysis report indicating the positive result; a chain-of-custody report showin g the collection, transfer, and receipt dates of the urine specimen; and an affida vit by the records custodian at Alere Toxicology attesting that the urinal ysis was conducted “according to established procedures certified and ap proved by the Administrative Office of the United States Courts.” McElro y objected on the grounds that the urinalysis report violated his Sixth Amendment right to cross-examination, was hearsay, and was unfairly prejudici al. The district court overruled his objections but permitted a running objection. Probation Officer Maria Ureste, who was not McElroy’s probation officer, testified for the Government th at she provided the confirmatory lab result. Ureste agreed on cross-examinat ion that it was her understanding that McElroy never admitted to using coca ine and that records indicated no subsequent tests were positive. She admitted that she was not aware of, and could not glean from the urinalysis report , the facts of ingest ion. Finally, she responded “no” when asked if she could tell from the urinalysis report if the cocaine was ingested passi vely or directly. During closing argument, the Govern ment argued that this court, in United States v. Courtney , 2 held that there is no meaningful distinction between the use and possessi on of a controlled substa nce and, thus, if the court finds use it should find possessi on. In response, counsel for McElroy emphasized that in Courtney , this court remanded for additional testimony about passive use and advised that ther e must be a proper record, through expert testimony, “that a positive re sult on tests may not reasonably be accounted for by passive inhalation” for the court to find use. In response,

2 979 F.2d 45 (5th Cir. 1992). Case: 20-50225 Document: 00515909282 Page: 3 Date Filed: 06/22/2021No. 20-50225

4 the district court opined that twenty-eight years after Courtney , “we’re able not to have to go through and argue passive inhalation.”
The district court found that the th ree violations alleged were true, revoked supervised release, and imposed a sentence of 24 months of imprisonment with no additional term of supervised release. Before the conclusion of the hearing, McElroy obje cted that the Government’s evidence was legally and factually insufficient to support the trial court’s findings. McElroy timely filed a notice of appeal.

II First, McElroy argues that the distri ct court abused its discretion by admitting the report containing the p ositive urinalysis result despite the Government’s failure to adhere to the sp ecific procedures th is court set forth in United States v. Grandlund 3 for the admittance of positive drug-test results in revocation proceedings. Accordingly, McElroy contends, the district court’s order revoking McElroy’s superv ised release based on that positive urinalysis report should be vacated.
This court reviews a district co urt’s ruling on the admissibility of evidence, as well as a district court’s de cision to revoke supervised release, for abuse of discretion. 4 However, because McElroy did not object in the district court to the Government’s failure to adhere to the Grandlund

3 71 F.3d 507.

4 United States v. Smith , 481 F.3d 259, 264 (5th Cir. 2007) (“This court reviews the admission of evidence for abuse of discretion.” (citing United States v. Guidry , 406 F.3d 314, 320 (5th Cir. 2005))); Grandlund , 71 F.3d at 509 (“The decision to revoke supervised release is reviewed under an abuse of discretion standard . . . .” (citing United States v. Turner , 741 F.2d 696, 698 (5th Cir. 1984) (summary calendar))). Case: 20-50225 Document: 00515909282 Page: 4 Date Filed: 06/22/2021No. 20-50225

5 procedures, we review for plain error 5 using the four-pronged test. 6 The Government correctly notes that McEl roy has made no argument as to the fourth prong of plain-error review , as required for reversal. 7 Assuming without deciding that the district cour t plainly erred, we decline to correct that error in this case.

III Next, McElroy argues that the distri ct court improperly overruled his Sixth Amendment objection without maki ng any findings and conclusions in the record on the issue of good cause— as required to abrogate McElroy’s right to confront the lab technician s who conducted the urinalysis and ultimately admit the urinalysis repo rt. The Governmen t responds that review is for plain error because McElro y’s objection in the district court was not sufficiently specific to preserve this claim, and—regardless—the district court’s failure to make a good cause finding was harmless error. This court reviews alleged violat ions of a defendant’s right to confrontation in a revocation proceedin g de novo, subject to a harmless error

5 United States v. Peltier , 505 F.3d 389, 391 (5th Cir. 2007), abrogated on other grounds by Holguin-Hernandez v. United States , 140 S. Ct. 762 (2020).

6 United States v. Bree , 927 F.3d 856, 859 (5th Cir. 2019) (“To prevail, [the defendant] must demonstrate that (1) the dist rict court erred, (2) the error was plain, (3) the plain error affected his substantial rights, and (4) allowing the plain error to stand would ‘seriously affect the fairness, integrity, or public reputation of judicial proceedings.’” (quoting Puckett v. United States , 556 U.S. 129, 135 (2009))).

7 United States v. Rivera , 784 F.3d 1012, 1018 n.3 (5th Cir. 2015) (“We have also refused to correct plain errors when, as here , the complaining party makes no showing as to the fourth prong.” (citations omitted)); see also United States v. Andaverde-Tiñoco , 741 F.3d 509, 523 (5th Cir. 2013) (“Importantly, the burden is on the defendant to demonstrate that the error affects the fairness, integrity, or public reputation of judicial proceedings.” (citing United States v. Broussard , 669 F.3d 537, 546 (5th Cir. 2012))). Case: 20-50225 Document: 00515909282 Page: 5 Date Filed: 06/22/2021No. 20-50225

6 analysis. 8 However, if McElroy did not pr eserve the error, we review for plain error. 9 We need not decide which standard of review applies, as McElroy cannot prevail under either. The due process right to confrontat ion at a revocation hearing is “qualified.” 10 The confrontation of a partic ular witness may be disallowed upon “an explicit, specific finding of good cause” by the district court. 11 That is, the district court is required to make its findings and conclusions part of the record. 12 Nevertheless, the failure to articulate a finding of good cause “may be found to be harmless error wh e[n] good cause exists, its basis is found in the record, and its finding is implicit in the court’s rulings.” 13 The good cause determination “requires weighing the defendant’s interest in confrontation of a partic ular witness against the Government’s proffered reasons for pretermitting the confrontation.” 14 As for McElroy’s interest in confrontation, we held in United States v. Grandlund that the defendant’s interest in confrontatio n of the lab technicians who conducted

8 United States v. Jimison , 825 F.3d 260, 262 (5th Cir. 2016) (citing United States v. Minnitt , 617 F.3d 327, 332 (5th Cir. 2010)); see also Grandlund , 71 F.3d at 509 (“[T]he constitutional challenge about the right of co nfrontation of adverse witnesses is reviewed de novo .” (italics in original) (citing United States v. McCormick , 54 F.3d 214, 219 (5th Cir. 1995))).

9 United States v. Peltier , 505 F.3d 389, 391 (5th Cir. 2007), abrogated on other grounds by Holguin-Hernandez v. United States , 140 S. Ct. 762 (2020).

10 Grandlund , 71 F.3d at 510 (citing Morrissey v. Brewer , 408 U.S. 471 (1972)).

11 Jimison , 825 F.3d at 263 (first quoting Grandlund , 71 F.3d at 510 n.6; and then citing Minnitt , 617 F.3d at 333).

12 Grandlund , 71 F.3d at 512.

13 Id. at 510 (first citing McCormick , 54 F.3d 214; and then citing United States v. Bell , 785 F.2d 640 (8th Cir. 1986)).

14 Jimison , 825 F.3d at 263 (brackets and in ternal quotation marks omitted) (quoting Minnitt , 617 F.3d at 333). Case: 20-50225 Document: 00515909282 Page: 6 Date Filed: 06/22/2021No. 20-50225

7 his urinalysis was “tenuous and margin al” because he offered no explanation for seven positive urinalyses over a 15-month period and because he did not deny ingesting cocaine, 15 seek retesting, subpoena lab technicians, offer evidence challenging the la b’s practices or procedures, provide the questions he would have asked lab personnel, or explain how cross-examination could be of relevance. 16 Similarly, we held in United States v. Minnitt that the defendant’s interest in confrontation was “minimal” because the defendant had not subpoenaed the lab technician or otherwise challenged the lab results, and “the truth of the fact can be st be verified through the methods of science rather than through the rigor of cross-examination.” 17 While McElroy denied the allegations of drug use when confronted with the positive urinalysis and reiterated that denial at the revocation hearing, McElroy’s prior admissions to the probation office that he used crack cocaine and methamphetamine su pport the reliability of the positive urinalysis. 18 Moreover, McElroy did not subp oena the lab technicians, offer independent evidence to show that the urinalysis report was not reliable, or explain how he woul d have assailed the credibility of the report had a lab technician testified—reducing his interest in confrontation. 19 Further, while

15 Grandlund , 71 F.3d at 511; see also id. at 510 (“In Kindred the government’s interest in minimizing the difficulty and ex pense of procuring witnesses outweighed the defendant’s interest, deemed minimal because he neither contested the allegations of drug use nor the accuracy of the drug test.”); United States v. Kindred , 918 F.2d 485, 487 (5th Cir. 1990).

16 Grandlund , 71 F.3d at 511.

17 Minnitt , 617 F.3d at 333-34 (internal qu otation marks omitted) (quoting McCormick , 54 F.3d at 222).

18 Cf. Grandlund , 71 F.3d at 511.

19 Cf. United States v. Alvear , 959 F.3d 185, 189 (5th Cir. 2020) (per curiam) (holding that a defendant’s “interest is lessened when he had ‘ample opportunity to refute Case: 20-50225 Document: 00515909282 Page: 7 Date Filed: 06/22/2021No. 20-50225

8 McElroy did otherwise contest the lab results by challenging the chain of custody and raising a false-positive de fense, he did not provide supporting evidence for his theory. Consequently, it is unlikely that the theory provides a “legally-significant interest in confrontation.” 20 In sum, McElroy’s interest in confrontation is minimal. In contrast, the Government’s interests in “[a]voiding the delay, difficulty, and expense of securing the ap pearance of distant witnesses” are “substantial” and “recognized as adequate good cause.” 21 Given that the testing lab for McElroy’s urine sample is in Louisiana and his revocation hearing was in Texas, there is little qu estion that the Government would have had to incur expense and delay to secu re the appearance of a lab technician from Louisiana at the revocation hearing.
As in Grandlund and Minnitt , we conclude that the record supports an implicit finding of good cause, and the di strict court’s failure to articulate its reasons for its good cause finding was harmless.

IV Lastly, McElroy challenges the suffici ency of the evidence to support the district court’s finding that McEl roy possessed cocaine in violation of his conditions of supervision. This court re views the district court’s decision to revoke supervised release for abuse of discretion. 22 We “must view the evidence and all reasonable inferences that may be drawn from the evidence

the Government’s evidence via methods ot her than cross-examination’” (quoting Minnitt , 617 F.3d at 333-34)); Grandlund , 71 F.3d at 511.

20 Alvear , 959 F.3d at 189 (quoting Minnitt , 617 F.3d at 335).

21 Grandlund , 71 F.3d at 511 (citing Gagnon v. Scarpelli , 411 U.S. 778 (1973)).

22 United States v. Spraglin , 418 F.3d 479, 480 (5th Cir. 2005) (per curiam) (citing Grandlund , 71 F.3d at 509). Case: 20-50225 Document: 00515909282 Page: 8 Date Filed: 06/22/2021No. 20-50225

9 in a light most favorable to the government.” 23 The evidence is sufficient if a reasonable trier of fact could reach the district court’s conclusion. 24 To revoke a term of supervised release, th e district court was required to “find by a preponderance of the evidence that [McElroy] violated a condition of his release.” 25 “All that [was] required [was] enough evidence, within a sound judicial discretion, to sati sfy the district judge that the conduct of [McElroy had] not met the conditions of probation,” 26 i.e., to satisfy the district judge that McElroy used—and thus possessed 27 —a controlled substance. McElroy challenges the sufficiency of the evidence on two grounds. He first argues that, if the urinalysis report had been excluded, the evidence is insufficient to support revocation because “the record contains no evidence regarding the collection of th e urine specimen and whether it was performed properly.” This court has explicitly held that “[m]issing links in the chain of custody go ‘to the weight and not the admissibility’ of evidence,” and “[i]n assessing the sufficiency of evid ence, we do not evaluate the weight

23 United States v. Alaniz-Alaniz , 38 F.3d 788, 792 (5th Cir. 1994) (summary calendar) (quoting United States v. Prieto-Tejas , 779 F.2d 1098, 1101 (5th Cir. 1986)).

24 Id. (citing United States v. Bell , 678 F.2d 547, 549 (5th Cir. Unit B 1982) (en banc), aff’d , 462 U.S. 356 (1983)).

25 Spraglin , 418 F.3d at 480 (citing 18 U.S.C. § 3583(e)(3)).

26 Id. at 481 (quoting United States v. Garza , 484 F.2d 88, 89 (5th Cir. 1973) (summary calendar) (per curiam)).

27 See United States v. Courtney , 979 F.2d 45, 49 (5th Cir. 1992) (“[I]n a sentencing or revocation context it is clear that ‘use’ requires knowing and voluntary ingestion. But once the court finds a substance has been voluntarily and knowingly ingested, then, at least in almost any imaginable ci rcumstance, it necessarily fo llows that the defendant has possessed the substance.”). Case: 20-50225 Document: 00515909282 Page: 9 Date Filed: 06/22/2021No. 20-50225

10 of the evidence or the credibility of witnesses.” 28 Thus, we need not address this argument. McElroy—citing United States v. Courtney 29 —argues second that, even if the urinalysis report was properly admitted, the evidence is insufficient to support a finding that the positive urinalysis may not reasonably be accounted for by passive ingestion. In Courtney , we held that— as the record stood on appeal—there was insufficient evidence to support the district court’s finding that the level of cocaine metabolite on the urinalysis report could not be the result of passive inhalation. 30 Undisputed testimony showed two positive urinalyses for cocaine, but there was no evidence regarding the significance of the conf irmation level or whether the result could reasonably be the result of passive inhalation. 31 In making its finding, the district court “merely relied, sua sponte , on [its] general recollection of unspecified testimony, in unidentified prior cases from unidentified witnesses,” which in the revocation co ntext was “an informality too far” and prevented this court “from meaning ful exercise of its duty of review.” 32 In this case, as in Courtney , there was no testimony or other evidence offered explaining the significance of the level of cocaine metabolite on the urinalysis report. However, unlike in Courtney , the district court relied on more than just its “general recolle ction of unspecified testimony, in

28 United States v. Doggins , 633 F.3d 379, 383 (5th Cir. 2011) (first quoting United States v. Ellis , 547 F.2d 863, 868 (5th Cir. 1977); and then quoting United States v. Delgado , 256 F.3d 264, 273-74 (5th Cir. 2001)).

29 979 F.2d 45 (5th Cir. 1992).

30 Id. at 50.

31 Id.

32 Id. (italics in original). Case: 20-50225 Document: 00515909282 Page: 10 Date Filed: 06/22/2021No. 20-50225

11 unidentified prior cases from unidentified witnesses” 33 to find that the confirmation level could not be the result of passive inhalation. The district court also relied on the testimony of Probation Officer Maria Ureste regarding the positive urinalysis, 34 as well as McElroy’s admission to prior drug use and addiction 35 —which is suggestive of intentional drug use. 36 Viewing all evidence and all reasonab le inferences that may be drawn from the evidence in a light most fa vorable to the Government, there was enough evidence, within a sound judicial discretion, to satisfy the district judge that McElroy possessed a contro lled substance in violation of the conditions of his supervis ion. Thus, the district court did not abuse its discretion in revoking McElroy’s superv ised release based on that finding.
* * * For the foregoing reasons, we AFFIRM the district court’s order revoking McElroy’s supervised release.

33 Id.

34 See supra Part I.

35 See id.

36 See Courtney , 979 F.2d at 49 n.5 (commenting that “Courtney’s prior use of the drug and his drug addiction” corroborated the positive laboratory analyses); United States v. Bubenik , No. 99-40153, 1999 WL 767257, at *3 (5th Cir. Sept. 8, 1999) (summary calendar) (per curiam) (holding that a defend ant’s prior drug use and drug addiction is evidence “suggesting intentional drug usage” (quoting Courtney , 979 F.2d at 49 & n.5)). Case: 20-50225 Document: 00515909282 Page: 11 Date Filed: 06/22/2021