                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  August 7, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 06-41563
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

METOYER HUGHES,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 6:03-CR-16-ALL
                       --------------------

Before REAVLEY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Metoyer Hughes appeals the district court’s judgment

revoking his supervised release and the imposition of a 24-month

sentence to run consecutively to any state sentence.     Finding no

error, we affirm.

     Hughes pleaded true to three violations of his supervised

release conditions but contested the two revocation charges based

on state law offenses.   For the first time, Hughes contends that

he was denied his right to confront and question adverse

witnesses when the district court allowed Sgt. Richard Morales to

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                            No. 06-41563
                                 -2-

testify regarding information he received from a confidential

informant.    That information led to a search of an apartment and

ultimately to Hughes’s arrest on state charges of possession of a

controlled substance with intent to distribute in a drug-free

zone and three counts of child endangerment.   These state charges

formed the basis of the two contested supervised release

violations.

     Hughes asserts that before allowing Sgt. Morales to testify

regarding the confidential informant’s statements, the court was

required to conduct a balancing test to determine whether there

was good cause for not requiring the informant to testify.     See

United States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995)

(setting out test).   As Hughes concedes, because he did not

object to Sgt. Morales’s testimony on this basis in the district

court, our review is limited to plain error, which requires a

showing of error that is clear or obvious and affects substantial

rights.   See United States v. Alaniz-Alaniz, 38 F.3d 788, 791

(5th Cir. 1994).   Even if all three prongs are met, we will not

exercise our discretion to correct the error unless the error

seriously affects the fairness, integrity, or public reputation

of judicial proceedings.

     We need not decide whether the district court’s failure to

conduct the balancing test sua sponte constitutes clear or

obvious error as we are satisfied by our review of the record

that any error there may have been did not affect Hughes’s
                           No. 06-41563
                                -3-
substantial rights.   First, whether Hughes would have prevailed

if the court had conducted the balancing test is speculative at

best.   In any case, even without the contested hearsay testimony,

there was sufficient other evidence to find that Hughes committed

the state drug and child endangerment offenses for purposes of

revocation.

     Independent evidence, including an insurance policy for

Hughes’s motorcycle listing the apartment as his address,

photographs of Hughes at the apartment, and Sgt. Morales’s own

observations of Hughes and his vehicles at the apartment complex,

established that Hughes lived at the apartment in question.

Quantities of cocaine and marijuana were found in the apartment

along with a firearm, ammunition, and measuring equipment.

Further, Hughes’s minor children were in the apartment alone and

unsupervised.   Under the applicable preponderance of the evidence

standard, see 18 U.S.C. § 3583(e)(3), the evidence supported the

district court’s determination that Hughes violated the subject

conditions of supervised release.   Accordingly, Hughes has failed

to demonstrate that any error there may have been in allowing the

hearsay testimony without conducting the required balancing test

affected his substantial rights.    See United States v. Olano, 507

U.S. 725, 734 (1993); United States v. Mares, 402 F.3d 511, 521

(5th Cir. 2005).

     Hughes also argues that the district court erred in ordering

that his sentence run consecutively to any as-yet-unimposed
                           No. 06-41563
                                -4-
sentence in the state proceedings.   Again, we review for plain

error.   As Hughes concedes, his argument is foreclosed by United

States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991).   He raises

the issue here only to preserve it for possible further review.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.
