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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-16418
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 0:98-cr-06154-PAS-4



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                    versus

MORRIS LEON JOHNSON,
a.k.a. FNU LNU,
a.k.a. Tank,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (September 19, 2013)

Before WILSON, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
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      Morris Leon Johnson appeals the revocation of his supervised release and

his sentence of five years of imprisonment. See 18 U.S.C. § 3583(e)(3). The

district court ruled that Johnson violated the condition that he not commit new

offenses by possessing cocaine, see Fla. Stat. §§ 893.03(2)(a)(4), 893.13(6)(a), and

by possessing marijuana, see id. §§ 893.03(1)(c), 893.13(6)(b). Johnson argues

that he was denied due process because the drugs were not available to inspect

when cross-examining his arresting officer and the forensic chemist who tested the

drugs and that there was insufficient evidence to prove that he possessed the illegal

substances. Johnson also argues that the district court plainly erred by imposing a

five-year sentence. We affirm.

                                 I. BACKGROUND

      In 2000, a jury convicted Johnson of one count of conspiring to possess with

intent to distribute cocaine base, see 21 U.S.C §§ 841(a)(1), 846, and three counts

of distributing cocaine base, id. §§ 2, 841(a)(1). Based on Johnson’s lengthy

criminal history and a motion filed by the government to enhance Johnson’s

sentence for his prior drug offenses, id. § 841(b)(1), his presentence investigation

report classified him as a career offender, see U.S.S.G. § 4B1.1, and provided a

sentence of life imprisonment for his conspiracy offense and a maximum statutory

term of imprisonment of 360 months for each of his three drug offenses. Before

Johnson’s sentencing hearing, the Supreme Court held in Apprendi v. New Jersey,


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530 U.S. 466, 120 S. Ct. 2348 (2000), that any fact other than a prior conviction

used to enhance a sentence must be submitted to a jury and proved beyond a

reasonable doubt. Id. at 490, 120 S. Ct. at 2362–63. Because the government had

not charged or proved the amount of drugs that Johnson had conspired to distribute

or had distributed, the district court ruled that Johnson could not receive a sentence

greater than the maximum statutory penalty of 240 months of imprisonment. See

21 U.S.C. § 841(b)(1)(C). The district court sentenced Johnson to four concurrent

terms of 240 months of imprisonment, followed by four concurrent terms of three

years of supervised release.

      In 2008, Johnson moved to reduce his sentence under Amendment 706 to the

Sentencing Guidelines. 18 U.S.C. § 3582(c). The district court granted the

motion, sentenced Johnson to four concurrent terms of 168 months of

imprisonment, and left undisturbed Johnson’s sentence of supervised release.

Johnson appealed, and we affirmed. United States v. Johnson, 370 Fed. App’x 1

(11th Cir. 2010).

      Approximately one year after Johnson was placed on supervised release, the

probation office filed a petition to revoke his supervised release. The petition

charged Johnson, in relevant part, with violating Florida law by possessing

cocaine, Fla. Stat. §§ 893.03(2)(a)(4), 893.13(6)(a); possessing marijuana, id.




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§§ 893.03(1)(c), 893.13(6)(b); and resisting arrest without violence, see id.

§ 843.02.

      During the revocation hearing, the prosecutor presented testimony from

Johnson’s arresting officer and the forensic chemist who tested the drugs. Officer

Dale Graziose of the City of Lauderdale Police Department testified that he

stopped Johnson for riding a bike at night without a light and retrieved from

Johnson’s front pants pocket a white cylinder that appeared to contain rocks of

crack cocaine and a large plastic bag containing 21 smaller bags filled with what

appeared to be marijuana and powder cocaine. Graziose testified that he

transported the substances to the police station and, when a preliminary test

revealed that the substances contained marijuana and cocaine, he sealed the items

in separate plastic bags and placed them in an evidence bag. Graziose also testified

that he marked the evidence bag with case number 12-03-5224 and left the bag in a

secured evidence locker for a property coordinator to deliver to the crime

laboratory. Deborah Friedman, a forensic chemist in the Sheriff’s Office of

Broward County, testified that the plastic bags containing leafy substances tested

positive for marijuana and that the bags containing the white powder and rocks

tested positive for cocaine.

      As Johnson was cross-examining Friedman about her testing process, the

district court questioned the prosecutor and learned that he had not brought the


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drugs to the hearing and that they were in the custody of state officers. Johnson

moved to dismiss the petition for revocation on the grounds that the absence of the

drugs undermined the integrity of the chain of custody because Friedman could not

match the case number from the evidence bag to the substances she had tested and

that the government could not prove Friedman tested the substances seized by

Graziose. The government then introduced, without objection, Friedman’s

forensic report, which stated that the test results correlated to “Agency Case: 12-

03-5224.” Johnson declined to continue cross-examining Friedman on the ground

that an examination of the evidence bag would “resolve” his concerns. The

prosecutor then elicited from Friedman on redirect that the evidence bag had been

marked with the name “Morris Johnson” and with the date and time when the

evidence had been collected.

      Johnson testified that Grazoise stopped him without cause. Johnson testified

that Graziose “put [a] gun to [Johnson’s] head and pursued [him]” and that

Graziose had “throw[n] drugs on top of the hood of his car” after arresting

Johnson. Johnson denied having told his probation officer that Graziose

discovered the drugs inside a backpack that had been stolen and then recovered by

Johnson shortly before his arrest.

      After a brief recess, the district court entertained arguments about whether

the prosecutor had to produce the drugs for the hearing. The prosecutor argued


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that the drugs were not required because the evidence from Graziose and Friedman

bore “all the indicia of reliability and credibility” to prove that Johnson had

possessed cocaine and marijuana. Johnson argued that “the [C]onfrontation Clause

. . . [required that Graziose] identify the drugs in court as the drugs seized from Mr.

Johnson and that . . . [Friedman] be required to . . . testify that the items that she

took out of whatever evidence bags were in front of her were the items seized by

[Graziose] . . . and linked to Mr. Johnson.”

      The district court ruled that the prosecutor did not have to produce the drugs

at the revocation hearing and that there was sufficient evidence to find that Johnson

violated the condition of his supervised release that he not commit a new offense.

The district court rejected Johnson’s testimony as not credible and credited the

testimonies of Graziose and Friedman. The district court determined that the

testimonial evidence did not contain hearsay and did not “implicate the right of

cross-examination” and that Johnson’s argument “really[] [pertained to] a gap in

the chain of custody” that affected the weight instead of the admissibility of the

evidence. The district court determined that the testimonies of Graziose and

Friedman and the contents of the forensic report were “sufficient even without the

drugs that [were] in State custody” to prove that Johnson violated the conditions of

his supervised release by possessing marijuana and cocaine. The district court also




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ruled that Johnson did not violate his supervised release by resisting an officer

without violence.

      The district court revoked Johnson’s supervised release and considered the

parties’ arguments about the length of Johnson’s sentence. Johnson requested a

sentence at the low end of the advisory guideline range of 21 to 27 months of

imprisonment, and the prosecutor requested a sentence at the high end of the

guideline range. The prosecutor stated that a sentence of 27 months would be less

than the statutory maximum sentence of five years of imprisonment. The district

court determined Johnson’s advisory guideline range, stated it did not “have to

follow the guidelines,” and then sentenced Johnson to “a period of five years.”

The district court explained “that sentence [was] necessary in order to protect the

public and also because of [Johnson’s] repeated recidivism” and his “need [for]

mental health treatment.”

                          II. STANDARDS OF REVIEW

      This appeal is governed by several standards of review. We review the

revocation of Johnson’s supervised release for abuse of discretion. United States

v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). In so doing, we review conclusions

of law de novo, id., and related findings of fact for clear error, United States v.

Almand, 992 F.2d 316, 318 (11th Cir. 1993). Because Johnson did not challenge




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the severity of his sentence on the ground he argues on appeal, we review only for

plain error. See United States v. Rodriguez, 627 F.3d 1372, 1380 (11th Cir. 2010).

                                 III. DISCUSSION

      Johnson argues that the district court committed two errors during the

revocation hearing. First, Johnson argues that he was denied due process when he

was unable to confront Graziose and Friedman with the drugs to verify that the

chain of custody was uninterrupted and that the drugs seized by Graziose were the

same substances tested by Friedman. Johnson contends that the government failed

to prove that he possessed marijuana and cocaine. Second, Johnson argues that the

district court plainly erred by imposing a sentence that exceeded the maximum

statutory penalty allowed when revoking a single term of supervised release. We

address each argument in turn.

   A. Johnson’s Right to Due Process Was Not Violated During His Revocation
                                   Hearing.

      A releasee charged with violating a term of his supervised release is not

entitled to the same procedural protections afforded the accused in a criminal trial.

See Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600 (1972); Frazier,

26 F.3d at 113–14. The releasee is afforded the minimum requirements of due

process, which entitles him to disclosure of the evidence against him and a hearing

at which he can present evidence and confront and cross-examine witnesses.

Morrissey, 408 U.S. at 489, 92 S. Ct. at 2604; see Fed. R. Crim. P. 32.1(b)(2). The
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hearing must be “structured to assure that the finding of a . . . violation will be

based on verified facts and that the exercise of discretion will be informed by an

accurate knowledge of [his] behavior,” id. at 484, 92 S. Ct. at 2602, yet should

involve a “process . . . flexible enough to consider evidence including letters,

affidavits, and other material that would not be admissible in an adversary criminal

trial,” id. at 489, 92 S. Ct. at 2604. Due to the informal nature of a revocation

hearing, the Federal Rules of Evidence do not apply. See Frazier, 26 F.3d at 114.

      The revocation hearing afforded Johnson due process. Johnson was able to

confront and cross-examine Graziose, the arresting officer who seized the

substances. See Fed. R. Crim. P. 32.1(b)(2). Graziose testified and underwent a

vigorous cross-examination about his discovery of the drugs and the steps he took

to secure the drugs for forensic testing. Johnson also was able to confront and

cross-examine Friedman, the chemist who tested the substances. Although

Johnson was unable to have Friedman identify the drugs during the revocation

hearing, Johnson was able to question Friedman about the drugs she tested and to

highlight any discrepancies that might have existed between her observations and

those of Graziose regarding the character and quantity of the drugs. Johnson was

limited in his ability to question Friedman about the chain of custody, but

information about the chain of custody was needed only to authenticate the drugs

in the event that they were introduced into evidence. See United States v. Lopez,


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758 F.2d 1517, 1520 (11th Cir. 1985). Johnson did not argue in the district court,

nor does he argue on appeal, that Friedman’s testimony should have been

excluded, and the district court was not bound by the Rules of Evidence in

deciding whether to admit Friedman’s testimony. See Frazier, 26 F.3d at 114. The

district court recognized that a “gap in the chain of custody” affected the weight of

Friedman’s testimony, see United States v. Roberson, 897 F.2d 1092, 1096 (11th

Cir. 1990), but the district court determined that the evidence was “sufficient even

without the drugs” to prove that Johnson had violated the conditions of his

supervised release by possessing marijuana and cocaine.

      The district court did not abuse its discretion in determining that the

government proved by a preponderance of the evidence that Johnson violated the

conditions of his supervised release by possessing marijuana and cocaine. See 18

U.S.C. § 3583(e)(3). The government presented evidence that Graziose seized

from Johnson several packages of substances, which tested positive for the

presence of marijuana and cocaine in a field test. That field test was consistent

with the results recorded in the forensic report, which was admitted into evidence

without objection. The district court based its decision on “the evidence from the

chemist and Officer Graziose,” from which it reasonably could infer that Friedman

tested the drugs seized from Johnson. See United States v. Hope, 901 F.2d 1013,

1021 (11th Cir. 1990) (When we examine the sufficiency of the evidence, we


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“view[] the evidence in the light most favorable to the government and accept[]

reasonable inferences and credibility choices made by the factfinder.”). Graziose

and Friedman testified consistently about the quantity of substances collected;

Friedman recalled that Johnson’s name had been written on the evidence bag; and

Friedman’s report stated that the test results correlated to the same case number

that Graziose had written on the evidence bag. And the district court could

discredit Johnson’s testimony that he did not possess the drugs and infer “that the

opposite of [his] testimony [was] true.” See United States v. Mejia, 82 F.3d 1032,

1038 (11th Cir. 1996), abrogated on a different ground, Bloate v. United States,

559 U.S. 196, 130 S. Ct. 1345 (2010). The district court readily could determine

from this evidence that Johnson’s conduct “[had] not been as good as required by

the conditions of probation.” United States v. Penn, 721 F.2d 762, 766 (11th Cir.

1983) (quoting United States v. Rice, 671 F.2d 455, 458 (11th Cir. 1982)).

    B. Any Error in Determining Johnson’s Sentence Did Not Affect Johnson’s
                              Substantial Rights.

      Johnson did not object to his sentence on the ground that it exceeded the

maximum authorized penalty, and so we review the issue for plain error. Under

that test, Johnson must prove that an error occurred, the error is plain, and it

affected his substantial rights. See Rodriguez, 627 F.3d at 1380. To establish that

an error affected his substantial rights, Johnson must prove that there existed “a

reasonable probability of a different result but for the error.” See id. at 1382
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(internal quotation marks and citation omitted). “That means that ‘where the effect

of an error on the result in the district court is uncertain or indeterminate — where

we would have to speculate — the appellant has not met his burden of showing a

reasonable probability of a different result.’” Id. (internal quotation marks and

citation omitted).

      Johnson faced a maximum statutory penalty of eight years of imprisonment.

Johnson was convicted of the underlying crimes of conspiring to distribute and

possessing with intent to distribute cocaine base, see 21 U.S.C §§ 2, 841(a)(1),

846, but in the absence of a finding of the amount of the illegal substance involved,

the district court could not sentence Johnson to more than 20 years of

imprisonment, see United States v. Sanchez, 269 F.3d 1250, 1270 (11th Cir. 2001)

(en banc). With a 20 year sentence, Johnson’s underlying convictions qualified as

Class C felonies. See 18 U.S.C. § 3559(a)(3). The maximum authorized sentence

for revocation of a term of supervised release for a Class C felony is 2 years. See

id. § 3583(e)(3). The district court originally sentenced Johnson to four concurrent

terms of supervised release, and when it revoked those terms it could have imposed

a sentence of two years for each term of supervised release and then ordered that

those sentences run consecutively. See United States v. Quinones, 136 F.3d 1293,

1294–95 (11th Cir. 1998).




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      Johnson and the government agree that agree that the district court

erroneously imposed a sentence of five years under the mistaken belief that the

term was the maximum statutory penalty Johnson faced for violating the conditions

of his supervised release, but Johnson fails to prove that error affected his

substantial rights. The district court sentenced Johnson to a term of imprisonment

that was three years less than his maximum penalty of eight years of imprisonment.

And Johnson has not proved that there is a reasonable probability that he would

have received a lower sentence had the district court realized its mistake. See

United States v. Pantle, 637 F.3d 1172, 1177 (11th Cir. 2011). The statements of

the district court suggest that it wanted to impose the maximum sentence available.

The district court refused to impose a sentence within the advisory guideline range

because of Johnson’s extensive history of serious criminal offenses, his recidivism,

the need to protect the public, and the need to provide Johnson with mental health

care. Because “the burden truly is on [Johnson] to show that the error actually did

make a difference,” see id. (quoting Rodriguez, 398 F.3d at 1300), and he cannot

do so, we cannot conclude that the error affected Johnson’s substantial rights.

                                IV. CONCLUSION

      We AFFIRM the revocation of Johnson’s supervised release and his

sentence of five years of imprisonment.




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