                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                          AUGUST 10, 2009
                            No. 08-15563                 THOMAS K. KAHN
                        Non-Argument Calendar                CLERK
                      ________________________

               D. C. Docket No. 97-00046-CR-1-MMP-AK

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

ERNEST WALTER JOHNSON,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Northern District of Florida
                     _________________________

                           (August 10, 2009)

Before MARCUS, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
      Ernest Walter Johnson appeals his sentence of imprisonment for sixty

months, which was imposed after revocation of his supervised release. 18 U.S.C. §

3583(e)(3). Johnson argues that the district court erred by admitting hearsay

testimony at his revocation hearing; there was insufficient evidence to revoke his

supervised release; and the district court failed to explain the basis for its sentence.

We affirm.

                                 I. BACKGROUND

      In 1997, Johnson pleaded guilty to conspiracy to possess with the intent to

distribute cocaine base. 21 U.S.C. § 846. The district court sentenced Johnson to

96 months of imprisonment followed by five years of supervised release. Johnson

was released from prison in 2005.

      In 2008, Johnson’s probation officer petitioned to revoke Johnson’s

supervised release on the ground that Johnson had committed a new crime. The

officer alleged that Johnson had been arrested for trafficking in cocaine. Johnson

denied the allegations.

      At the revocation hearing, the government presented testimony from two

police officers regarding the drug transaction that led to Johnson’s arrest and

Johnson’s post-arrest statements to the officers. Ernest Hale, an investigator with

the Alachua County Drug Task Force, testified that in January 2008, a confidential



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informant, Eugene Batie, reported that a person offered to sell him two ounces of

cocaine. Batie could not provide the person’s name, but he gave Investigator Hale

the tag number of the person’s Cadillac automobile. The Cadillac was owned by

Johnson, and Batie identified Johnson in a photographic lineup.

      Investigator Hale testified that Batie agreed to make a controlled buy from

Johnson. Before the sale, Johnson called Batie to report he would be late. During

the call, which was monitored by law enforcement, Johnson told Batie that he

could sell only one and one-quarter ounces of cocaine. As Investigator Hale and

Detective Pat Penny watched from a distance, a person arrived at the transaction in

Johnson’s Cadillac and sold Batie 37.71 grams of a white powdery substance that

tested positive for the presence of cocaine both in a field test and under forensic

examination. After the transaction, Batie identified Johnson in a second

photographic lineup.

      Investigator Hale testified that he later interviewed Johnson about the drug

transaction. Johnson admitted to Investigator Hale and Detective Penny that he

sold cocaine to Batie, and Johnson offered to assist authorities in future drug

operations. After the interview, Investigator Hale and Detective Penny

accompanied Johnson to his Cadillac that the officers recognized from the drug

transaction because of its distinctive spinning chrome rims. Johnson admitted that



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he purchased the chrome rims with money made from a drug transaction.

      On cross-examination, defense counsel questioned Investigator Hale about

Batie’s identification of Johnson. When defense counsel realized that Batie would

not testify at the hearing, defense counsel objected to Hale’s testimony on the

ground that “everything that this witness has said regarding any allegations by

another individual against my client[ is] a violation of Crawford v. Washington[,

541 U.S. 36, 124 S. Ct. 1354 (2004)].” After the district court overruled the

objection, defense counsel questioned Investigator Hale about excerpts from

Batie’s deposition to suggest that Batie guessed when he identified Johnson during

the photographic lineups. Hale responded that he did not instruct Batie to guess

during the selection process.

      Detective Penny testified that the person who sold Batie the cocaine drove a

Cadillac with “after-market [chrome] rims,” and the detective was certain that the

vehicle was the same Cadillac that Johnson drove to his interview. Detective

Penny said he thought that Batie had selected Johnson’s photograph from the

lineup “before [Penny] had made contact[.]” Detective Penny stated that he did not

ask or hear Investigator Hale ask Johnson about the drug transaction, but the

detective recalled that Johnson was willing to cooperate and provided information

about other narcotics dealers.



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      The district court overruled Johnson’s motion to suppress. The district court

credited Investigator Hale’s testimony that Johnson sold cocaine to Batie, and the

court found that defense counsel had “put[] an emphasis on [Batie’s] answer” that

he recalled he had guessed when Batie was not asked squarely if he had guessed

when he identified the person who sold him drugs. The district court ruled that

Johnson “violated the terms and conditions of supervised release” and sentenced

Johnson to sixty months of imprisonment. The district court commented that it

imposed the maximum statutory term of imprisonment because “[i]t [didn’t] look

like” Johnson had “learned too much” when the court granted a downward

departure when it originally sentenced Johnson.

                          II. STANDARDS OF REVIEW

      We apply several standards of review in this appeal. Objections or

arguments that are not raised in the district court are reviewed for plain error, and

to warrant relief, the error “must have been prejudicial: It must have affected the

outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725,

734, 113 S. Ct. 1770, 1778 (1993). We review a revocation of supervised release

for abuse of discretion and related questions of law de novo. United States v.

Frazier, 26 F.3d 110, 112 (11th Cir. 1994). We review a sentence imposed upon

revocation of supervised release for reasonableness. United States v. Sweeting,



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437 F.3d 1105, 1106–07 (11th Cir. 2006).

                                  III. DISCUSSION

      Johnson raises three challenges to his revocation proceeding. First, Johnson

argues that the admission of hearsay testimony violated his rights of confrontation

and due process. Second, Johnson contends that the government failed to present

sufficient evidence to revoke his supervised release. Third, Johnson argues for the

first time on appeal that the district court failed to “consider the sentencing factors

in 18 U.S.C. § 3553(a).” We address each argument in turn.

      The district court did not err when it permitted Investigator Hale to testify

that Batie had identified Johnson as the person who sold him cocaine. Although

Johnson failed to object to Investigator Hale’s testimony as hearsay, we have ruled

that hearsay is admissible in revocation hearings. United States v. Frazier, 26 F.3d

110, 113–14 (11th Cir. 1994). The district court did not plainly err when it

admitted the hearsay because there was “significant indicia” to find the information

was reliable: the officers seized cocaine from Batie after the drug transaction;

Investigator Hale and Detective Penny saw Johnson’s Cadillac during the drug

transaction; and Johnson admitted he sold cocaine to Batie. See United States v.

Castellanos, 904 F.2d 1490, 1495 (11th Cir. 1990) (“[A] court may consider [at a

sentencing hearing] any information, including reliable hearsay, regardless of the



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information’s admissibility at trial, provided that there are sufficient indicia of

reliability to support its probable accuracy.”).

      The district court did not abuse its discretion by revoking Johnson’s

supervised release. The district court was entitled to credit the testimony of the

officers that Batie had identified Johnson as the seller, the seller drove Johnson’s

vehicle, and Johnson had admitted that he sold the cocaine. See United States v.

Clay, 483 F.3d 739, 744 (11th Cir. 2007). The record supported the finding of the

district court that Johnson violated a term of his supervised release.

      No error occurred when the district court imposed Johnson’s sentence. As

Johnson admits in his brief, the district court was not required to consider the

sentencing factors because Johnson violated the condition of his supervised release

that he not possess illegal drugs. 18 U.S.C. § 3583(g)(1); United States v. Brown,

224 F.3d 1237, 1242 (11th Cir. 2000). The district court did not abuse its

discretion when it concluded that the maximum term of imprisonment was

necessary to punish Johnson’s continued criminal conduct. See 18 U.S.C. §

3553(a).

                                 IV. CONCLUSION

      The revocation of Johnson’s supervised release and sentence are

AFFIRMED.



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