UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4744

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KAWONE KAREEM WALKER, a/k/a Fish,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of Virginia, at Charlottesville. Norman K. Moon, District

Judge. (3:96-cr-00053-NKM)

Submitted: December 19, 2007 Decided: January 29, 2008

Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Frederick T. Heblich,

Jr., Assistant Federal Public Defender, Christine Madeleine

Spurell, Research and Writing Attorney, Charlottesville, Virginia,

for Appellant. John L. Brownlee, United States Attorney, Ray B.

Fitzgerald, Jr., Assistant United States Attorney, Charlottesville,

Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Kawone Kareem Walker appeals the district court’s order

revoking his supervised release. On appeal, Walker challenges the

district court’s revocation order, asserting that the failure to

provide witnesses to the alleged criminal acts on which the

revocation was based violated his Fifth and Sixth Amendment rights

and Fed. R. Crim. P. 32.1. We affirm.

In 1997, Walker pled guilty to conspiracy to distribute

cocaine base. He was sentenced to 121 months of imprisonment and

five years of supervised release. On January 31, 2007, he was

arrested by the New York City Police Department and charged with

criminal sale of a controlled substance and criminal possession of

a controlled substance, both Class B felonies, and criminal

possession of a controlled substance, a Class A misdemeanor, for

selling crack to an undercover police officer and dropping five

bags of crack during his flight from the scene. 

When this arrest was brought to the attention of the

district court, the court ordered issuance of a warrant. At a

hearing, the supervised release violation report was entered into

evidence, and the probation officer testified. The probation

officer confirmed that he had advised the court that Walker was

arrested on charges of possession and distribution of crack

cocaine. Walker made no objection to the absence of any other

adverse witnesses. He testified and admitted that the New York
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charges were pending, but he denied that he had possessed any drugs

and asserted his innocence of the charges. Walker’s sister and his

girlfriend also testified in his behalf.

Based on this evidence, the district court found Walker’s

version of the arrest not credible. The district court found that

Walker committed a Grade A violation, revoked his supervised

release, and sentenced him to thirty months imprisonment, to be

followed by twenty-four months of supervised release.

This court reviews the district court’s revocation of

supervised release for abuse of discretion. United States v.

Pregent, 190 F.3d 279, 282 (4th Cir. 1999). The district court

need only find a violation of a condition of supervised release by

a preponderance of the evidence. 18 U.S.C.A. § 3583(e)(3) (West

2000 & Supp. 2007). We review for clear error factual

determinations underlying the conclusion that a violation occurred.

United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003);

United States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996). 

Walker asserts that he was denied the right to confront

the witnesses against him, citing the Fifth and Sixth Amendments

and Fed. R. Crim. P. 32.1. Because Walker did not raise these

claims before the district court, we review them for plain error.

See United States v. Smith, 452 F.3d 323, 331 (4th Cir.) (citing

United States v. Olano, 507 U.S. 725, 732-36 (1993)), cert. denied,

127 S. Ct. 694 (2006). 
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In Crawford v. Washington, 541 U.S. 36 (2004), the

Supreme Court held that the Sixth Amendment’s Confrontation Clause

does not permit the introduction of out-of-court testimonial

evidence unless the witness is unavailable and the defendant has

had a prior opportunity for cross-examination. Id. at 68. Walker

asserts that, under this ruling, he was entitled to be confronted

at the supervised release hearing with the witnesses against him.

He contends that the rule of Crawford applies to supervised release

revocation hearings because, unlike parole and probation

revocation, this is a new prosecution that ends in a new

punishment. But see Johnson v. United States, 529 U.S. 694, 700-01

(2000) (penalties imposed upon revocation of supervised release are

attributable to the original conviction, not a punishment for a new

offense). 

The Crawford holding does not apply to supervised release

revocations because they are not “criminal prosecutions” under the

Sixth Amendment. See United States v. Kelley, 446 F.3d 688, 691-92

(7th Cir. 2006); United States v. Rondeau, 430 F.3d 44, 47-48 (1st

Cir. 2005); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir.

2005); United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005);

United States v. Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004).

Further, Walker has not established that the district court

committed plain error under the Fifth Amendment Due Process Clause,

see Hall, 419 F.3d at 986, or under Fed. R. Crim. P. 32.1(b)(2)(C).
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Because Walker did not raise the issue below, he did not provide

the district court with an opportunity to assess his right to

question any adverse witness or to determine that “the interest of

justice does not require the witness to appear.” Rule

32.1(b)(2)(C). 

Accordingly, we find that the district court did not

abuse its discretion in revoking Walker’s supervised release. We

affirm the district court’s revocation of supervised release and

the sentence imposed. We dispense with oral argument because the

facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the

decisional process.

AFFIRMED