United States v. Brian Hill


                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT

                                      No. 19-4758


                    Plaintiff - Appellee,



                    Defendant - Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. Thomas D. Schroeder, Chief District Judge. (1:13-cr-00435-TDS-1)

Submitted: July 21, 2020                                      Decided: October 16, 2020

Before DIAZ, HARRIS, and RUSHING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

E. Ryan Kennedy, ROBINSON & MCELWEE, PLLC, Clarksburg, West Virginia, for
Appellant. Matthew G.T. Martin, United States Attorney, Anand P. Ramaswamy,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

       Brian David Hill appeals the district court’s judgment revoking his supervised

release and imposing a sentence of nine months in prison, followed by an additional nine

years of supervised release. On appeal, Hill argues that the district court erred by

conducting the revocation hearing without a jury and failing to apply a beyond a reasonable

doubt standard of proof, erred in finding that Hill violated a condition of his supervised

release, and abused its discretion in denying Hill’s motion to continue the revocation

hearing. We affirm.

       Hill first asserts that proof beyond a reasonable doubt, not preponderance of the

evidence, is the appropriate standard for revoking supervised release and further claims

that a jury must make the relevant factual findings.         However, we have previously

determined “that the conditional liberty to which those under supervised release are subject

entails the surrender of certain constitutional rights, including any right to have the alleged

supervised release violation proved to a jury beyond a reasonable doubt.” United States v.


770 F.3d 1090

, 1099 (4th Cir. 2014); see Johnson v. United States, 

529 U.S. 694


700 (2000) (holding that supervised release violation “need only be found by a judge under

a preponderance of the evidence standard, not by a jury beyond a reasonable doubt”).

Although Hill argues that the Supreme Court’s holding in United States v. Haymond, 

139 S. Ct. 2369

(2019) (striking down 18 U.S.C. § 3583(k) (2018)) should be extended to all

supervised release proceedings, we conclude that Haymond had no impact on Hill’s

revocation sentence imposed under 18 U.S.C. § 3583(e)(3) (2018). Accordingly, because

Ward remains good law, its holding forecloses Hill’s argument.

       Hill next argues that the district court erred in finding that Hill violated the

conditions of his supervised release. We review the district court’s revocation decision for

abuse of discretion and its factual findings for clear error. United States v. Dennison, 

925 F.3d 185

, 190 (4th Cir. 2019). Hill challenges the district court’s finding that he committed

a state offense by violating Virginia’s indecent exposure statute and argues that his conduct

was neither intentional nor obscene, as required to violate Va. Code Ann. § 18.2-387


       We have reviewed the record and find no merit to Hill’s contentions. To satisfy its

burden of proof at the revocation proceeding, the Government presented evidence that,

while serving his supervised release term, Hill intentionally made an obscene exposure of

his person in a public place. Hill was arrested after exposing himself and taking naked

photographs of himself late at night in various areas of the commercial district of

Martinsville. The district court credited the testimony and evidence presented by the

Government and rejected the alternative explanations that Hill offered to excuse his

conduct. See United States v. Layton, 

564 F.3d 330

, 334 (4th Cir. 2009) (“The district

court’s credibility determinations receive great deference.” (internal quotation marks

omitted)). Further, the Government sufficiently demonstrated that Hill’s conduct was

obscene. See Va. Code Ann. § 18.2-372; Price v. Commonwealth, 

201 S.E.2d 798

, 800

(Va. 1974). Accordingly, the district court did not abuse its discretion in revoking Hill’s

supervised release when it determined that the Government established, by a

preponderance of the evidence, that Hill intentionally violated the Virginia statute and that

his conduct was obscene.

       Finally, Hill asserts that the district court abused its discretion in denying his motion

for a continuance made on the day of the revocation hearing. Hill sought to delay the

revocation hearing until his appeal on the Virginia indecent exposure conviction was

complete. “We review the denial of a motion for a continuance for abuse of discretion.”

United States v. Copeland, 

707 F.3d 522

, 531 (4th Cir. 2013). “‘[B]road discretion must

be granted trial courts on matters of continuances; only an unreasoning and arbitrary

insistence upon expeditiousness in the face of a justifiable request for delay violates the

right to the assistance of counsel.’” United States v. Williams, 

445 F.3d 724

, 738-39 (4th

Cir. 2006) (quoting Morris v. Slappy, 

461 U.S. 1

, 11-12 (1983)). Even where this broad

discretion has been abused, “the defendant must show that the error specifically prejudiced

his case in order to prevail” on appeal. 

Copeland, 707 F.3d at 531

(brackets and internal

quotation marks omitted).

       The district court was not required to grant Hill’s motion for a continuance pending

the conclusion of his appeal of his indecent exposure conviction in Virginia circuit court.

See United States v. Spraglin, 

418 F.3d 479

, 480–81 (5th Cir. 2005) (rejecting appellant's

argument that district court abused its discretion in revoking his supervised release based

on evidence of his state murder conviction, which was still pending on appeal when

supervised release was revoked); United States v. Fleming, 

9 F.3d 1253

, 1254 (7th Cir.

1993) (“The conviction itself, whether or not an appeal is taken, provides adequate proof

of the violation of state law to justify revoking probation.”). Further, Hill has not

established that he was prejudiced by the denial of the motion. We therefore conclude that

the district court did not abuse its discretion in denying Hill’s motion.

      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.



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