United States of America v. Thomas Combs

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4064
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
THOMAS COMBS,
Defendant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, Senior District Judge. (1:12-cr-00148-RDB-1)
Argued: May 5, 2022 Decided: June 7, 2022
Before MOTZ, QUATTLEBAUM, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge
Quattlebaum and Judge Heytens joined.
ARGUED: Cullen Oakes Macbeth, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Greenbelt, Maryland, for Appellant. Matthew Paul Phelps, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: James Wyda,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Jonathan F. Lenzner, Acting United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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DIANA GRIBBON MOTZ, Circuit Judge:
In the hearing to determine whether to revoke Thomas Combs’ supervised release
and sentence him to additional time in prison, the district court twice referred to out-of-
court statements by Combs’ ex-wife. The court neither disclosed these statements to
Combs’ counsel prior to the revocation hearing nor gave counsel the opportunity to cross-
examine the speaker. At the hearing, Combs never objected to the court’s introduction of
the statements or requested a continuance during which he might discover information
about them. Combs argues on appeal, however, that the introduction of his ex-wife’s
statements during the revocation hearing constitutes plain error and asks that we remand
this case to the district court for resentencing. Because we find that any error did not affect
his substantial rights, we affirm.
I.
In 2012, Thomas Combs pled guilty to conspiracy to commit racketeering in
violation of 18 U.S.C. § 1962(d) and was sentenced to a little over four years in prison and
three years of supervised release. This case concerns what occurred after Combs was
released from prison and began his term of supervised release. In August 2017, Combs
assaulted his then-girlfriend N.D. and did not report his resulting contact with law
enforcement to his probation officer. In light of this assault, after a revocation hearing, the
district court revoked supervised release and sentenced Combs to time served and a new
eighteen-month supervised release term with the same terms as those previously imposed.
The assault was the start of a series of supervised release violations. In January
2019, Combs admitted to using controlled substances. His probation officer later informed

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the district court that Combs subsequently missed a urine test, failed to appear for
treatment, and remained under the influence of controlled substances. As a result, after a
second revocation hearing, the district court sentenced Combs to an additional two months
in prison followed by four months of supervised release (a downward variance from the 6–
12-month Guidelines range).
N.D. attended each of these revocation hearings. At each hearing, the district court
referred repeatedly to N.D., invited her to call the probation officer if she had any issues,
and asked her questions about Combs and her daughter. For example, during the second
revocation hearing, the court noted twice that it would “like to hear from” N.D., and later
repeated, “I definitely want to hear from” her.
Following his release from prison in June 2019, Combs once again admitted to
violating the terms of his supervised release. This time, Combs was convicted of failure to
obey a lawful order and disorderly conduct after an argument with N.D. He later was
charged as a felon in possession of a firearm after sending a text message to N.D. with a
picture of himself holding a gun. The text message said, “Do you think I won’t use it?”
He served the resulting sentence in state custody.
His probation officer then filed a petition to revoke supervised release based on
these convictions and his failure to report to counseling. N.D. — now Combs’ ex-wife —
did not appear at the revocation hearing that followed (Combs’ third). But at the hearing,
the district court twice referred to N.D.’s out-of-court statements. First, after explaining
the procedural history of the case, the district court stated:

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And while he was in state custody, I should note for the record there were
concerns noted by your — I gather you[r] former wife [N.D.] with respect to
your potential release. And it was confirmed by the U.S. Marshals service
that a detainer was lodged against you, so that once you completed your state
sentence you would not be released and be turned over to federal authorities.
Second, when announcing Combs’ sentence, the district court stated: “[Y]ou have
terrorized people, [N.D.], literally, I know she’s called my chambers worried about when
you would be released by the state, whether or not there was a federal detainer.”
Before announcing his sentence, the district court also explained that Combs
“clearly . . . had a serious drug problem and . . . clearly had emotional and mental issues.”
But it reasoned that Combs’ “mental health issues have endangered people,” emphasizing
the court’s duty to protect the public. The court concluded that the Guidelines range of
thirty-seven to forty-six months was appropriate “in light of the long[,] tortured history of
this case, not one, not two, but three different violations of supervised release.” As a result,
the district court imposed a sentence of thirty-seven months’ imprisonment, a sentence at
the bottom of the Guidelines range, with credit for time served and eighteen months of
supervised release to follow.
II.
Combs appeals his sentence, arguing the district court erred by admitting N.D.’s
out-of-court statements during the revocation hearing. He contends the district court
violated Federal Rules of Criminal Procedure 32.1(b)(1)(B) and (C) by admitting her
statements without balancing the interests of the parties, requiring a showing of good cause,
or first disclosing the statements to Combs.

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Ordinarily, we review a district court’s evidentiary decisions in a supervised release
revocation hearing for abuse of discretion. United States v. Doswell, 670 F.3d 526, 529
(4th Cir. 2012). But because Combs never objected to the introduction of N.D.’s out-of-
court statements before the district court, we review here only for plain error. To show that
the district court plainly erred, Combs must establish that “(1) an error occurred; (2) the
error was plain; and (3) the error affected [his] substantial rights.” United States v. Bennett,
986 F.3d 389, 397 (4th Cir. 2021), cert. denied, 142 S. Ct. 595 (2021). Even if all three
factors are satisfied, we exercise our discretion to correct the error only if it “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting
United States v. Olano, 507 U.S. 725, 732 (1993)) (alteration in original).
III.
Rule 32.1 of the Federal Rules of Criminal Procedure sets out the basic procedures
required during a revocation hearing. Rule 32.1(b)(2)(B) states that a person subject to a
revocation hearing “is entitled to . . . disclosure of the evidence against” him. Additionally,
Rule 32.1(b)(2)(C) states that 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.” Thus, under subsection (C), “prior to admitting hearsay evidence 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.”
Doswell, 670 F.3d at 530. “Reliability is a critical factor in [that] balancing test. . . .” Id.
at 531. And “unless the government makes a showing of good cause for why the relevant

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witness is unavailable, hearsay evidence is inadmissible at revocation hearings.” United
States v. Ferguson, 752 F.3d 613, 617 (4th Cir. 2014).
The Government primarily contends that the district court committed no error at all
here because neither of these rules applies to the sentencing portion of the revocation
hearing. According to the Government, Rules 32.1(b)(2)(B) and (C) apply only to the
portion of the proceedings in which the court determines whether there has been a violation
of supervised release. The Government calls this the “guilt phase,” which it distinguishes
from a revocation hearing’s “sentencing phase.” Br. of Appellee at 9.
The argument that the Rules do not apply to the “sentencing phase” cannot be
correct. First, nothing in the text of the Rule indicates that it applies only to the so-called
“guilt phase.” The Government points us to the title of Rule 32.1(b)(2) — “Revocation
Hearing” — and contrasts that with Rule 32, entitled “Sentencing and Judgment.” It argues
that if Rule 32.1(b)(2) applied to sentencing proceedings, the Rule’s title would say
“Sentencing” as well. However, “Sentencing” and “Revocation Hearing” need not be
mutually exclusive. The Rule certainly never draws such a distinction. And we see no
reason why the term “Revocation Hearing” cannot encompass both the guilt phase and the
sentencing phase of the proceedings. Cf. Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206,
212 (1998) (“The title of a statute cannot limit the plain meaning of the text.” (alterations
and citation omitted)).
Moreover, subsection (E) of the same Rule provides a person charged with a
violation of the terms of supervised release the right “to make a statement and present any
information in mitigation.” Fed R. Crim. P. 32.1(b)(2)(E) (emphasis added). The Advisory

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Committee explained that this subsection (E) reflects “the importance of allocution and
now explicitly recognizes that right at Rule 32.1(b)(2) revocation hearings.” Fed. R. Crim.
P. 32.1 Advisory Committee Notes (2005). The Government does not dispute that
mitigation and allocution relate to sentencing. That Rule 32.1(b)(2) lists the right to
allocution together with the rights to the disclosure of evidence and to question adverse
witnesses in a single list of procedural protections — drawing no distinction between the
guilt and sentencing phases of a revocation hearing — indicates strongly that the Rule
applies to the entire proceeding.
The origins of Rule 32.1 make that conclusion even more apparent. Rule 32.1
“formalized” the due process rights originally set forth in Morrissey v. Brewer, 408 U.S.
471 (1972). See Ferguson, 752 F.3d at 616; see also Doswell, 670 F.3d at 530. In
Morrissey, the Supreme Court explained that “a revocation decision” resolves two
questions: (1) “a wholly retrospective factual question” about whether a violation of the
terms of release has occurred; and (2) a “discretionary” question about whether “the
parolee [should] be recommitted to prison or” if “other steps [should] be taken to protect
society and improve chances of rehabilitation.” 408 U.S. at 479–80. Morrissey thus
supports a broad reading of “Revocation Hearing” as applying to the “sentencing phase”
as well as the “guilt phase.”
As a final attempt to overcome the more obvious reading of Rule 32.1, the
Government argues that it would be nonsensical to impose stricter procedural requirements
during revocation sentencings than we do during ordinary sentencings. The Government
points to our decision in United States v. Powell, in which we stated that we “have

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repeatedly allowed a sentencing court to consider ‘any relevant information before it,
including uncorroborated hearsay, provided that the information has sufficient indicia of
reliability.’” 650 F.3d 388, 392 (4th Cir. 2011) (quoting United States v. Wilkinson, 590
F.3d 259, 269 (4th Cir. 2010)).
But as Combs notes, the two contexts are not comparable. A criminal conviction
imposed after an initial criminal trial carries with it societal stigma and, often, the loss of
civil rights like the rights to vote and serve on a jury. See Ball v. United States, 470 U.S.
856, 865 (1985) (describing “the societal stigma accompanying any criminal conviction”);
United States v. Logan, 453 F.3d 804, 807 (7th Cir. 2006) (describing deprivation of civil
rights associated with criminal convictions). In contrast, the guilt phase of a revocation
hearing involves few, if any, of these collateral consequences. Cf. United States v. Gibbs,
897 F.3d 199, 203 (4th Cir. 2018) (a violation of conditions of supervised release “is not
treated as new criminal conduct but rather as a ‘breach of trust’ in failing to abide by the
conditions of [an] original sentence” (citing U.S.S.G. ch. 7, pt. A, introductory cmt. 3(b)).
Instead, the most meaningful consequences for a releasee come at the sentencing stage,
when a court decides whether to revoke the terms of supervised release and impose
additional prison time.1
1 For this reason, we do not find persuasive the Tenth Circuit’s reasoning in United
States v. Ruby, 706 F.3d 1221 (10th Cir. 2013). We cannot agree that there is “no
meaningful difference between sentencing at a revocation proceeding and sentencing after
a guilty plea or jury verdict of conviction.” Id. at 1227; see Gibbs, 897 F.3d at 203 (noting
a “distinction between original sentencing and revocation sentencing”); United States v.
Crudup, 461 F.3d 433, 438-39 (4th Cir. 2006) (emphasizing “the unique nature of
supervised release revocation sentences” as compared to “original sentences”).

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Thus, we reject the Government’s argument that Rules 32.1(b)(2)(B) and (C) do not
apply to the sentencing phase of a revocation proceeding and conclude that the district
court erred in introducing N.D.’s statements without balancing the interests of the parties,
requiring a showing of good cause, or first disclosing the statements to Combs.
IV.
Notwithstanding our disagreement with the Government’s arguments regarding the
applicability of Rule 32.1(b)(2) to sentencing — and assuming that the district court plainly
erred here in violating those provisions — we must conclude that any error did not affect
Combs’ substantial rights. To establish the third prong of plain error, Combs “must ‘show
a reasonable probability that, but for the error,’ the outcome of the proceeding would have
been different.” Molina-Martinez v. United States, 578 U.S. 189, 194 (2016) (quoting
United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004)). Here, the question is
whether, absent the improperly admitted statements, Combs has shown a reasonable
probability that the district court would have imposed a lower sentence.2
The record provides no evidence of such a probability. Though the district court
offered only a brief explanation for its decision, the court did expressly consider several
factors in addition to N.D.’s statements in announcing the sentence. The court made note
of Combs’ history of repeated violations of his conditions of supervised release, his
2 The parties agree that we apply the same substantial rights analysis to errors under
Rule 32.1(b)(2)(B) as we do to those under Rule 32.1(b)(2)(C). See United States v. Hayes,
171 F.3d 389, 394–95 (6th Cir. 1999). Combs need not “rebut evidence he has never seen,”
i.e., the undisclosed statements from his ex-wife, “in order to establish that he was
prejudiced by the district court’s reliance on that evidence.” Id. at 394.

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continual drug use, the court’s duty to protect public safety, and the sentencing factors
under 18 U.S.C. § 3553(a). In particular, the court stated: “I am compelled to find that the
guideline range is appropriate in light of the long[,] tortured history of this case, not one,
not two, but three different violations of supervised release.” And although the court
mentioned that Combs had “terrorized” his ex-wife, it also referred to Combs’ prior
conviction for robbery with a dangerous weapon. The district court emphasized that during
one of the previous revocation hearings, it had delayed the proceedings “to hopefully see
if [Combs would be] able to turn [his] life around,” but it found that Combs had not done
so. Looking more broadly to the district court’s discussion of the case throughout the
hearing, the court recounted in detail the previous violations of supervised release, giving
those violations great weight.
Moreover, even putting aside N.D.’s ex parte phone calls, the court was already
aware that Combs had “terrorized” N.D. Indeed, the very first revocation hearing arose
from his assault of N.D., which Combs himself admitted and agreed had been a “horrible
choice.” A letter N.D. previously sent to the court described her fear of Combs in detail.
That letter was disclosed to all parties before the hearing, and Combs does not argue the
district court could not have considered it. Moreover, Combs did have an opportunity to
respond or rebut this letter and failed to do so. And finally, the conviction that formed the
basis of the revocation proceedings at issue here arose from a threatening message Combs
sent to N.D., prompting her to call law enforcement.
Of course, we do not know exactly what N.D. said in her phone calls to the court.
As the Sixth Circuit has noted, under these circumstances, it is difficult to know whether

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the statements were “cumulative of other evidence properly before the court” because the
full content of the communications with the court were never revealed. United States v.
Hayes, 171 F.3d 389, 394–95 (6th Cir. 1999). And as we held in Ferguson, “[b]ecause
cross-examination is such a vital tool for the defendant, it is difficult, after the fact, to assess
the full harm of [such] a legal error.” 752 F.3d at 619. But considering the wealth of
information the district court already had before it as to Combs’ treatment of his ex-wife,
the court’s heavy emphasis on the frequency of violations and the threat to public safety
posed by Combs, and the bottom-of-the-Guidelines sentence it imposed, we must conclude
that Combs has not shown a reasonable probability that the outcome of the proceedings
would have been different absent consideration of the undisclosed statements.
V.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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