                                                                [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT           FILED
                             ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                  JUNE 4, 2010
                                    No. 09-14368
                                                                   JOHN LEY
                                Non-Argument Calendar
                                                                     CLERK
                              ________________________

                         D. C. Docket No. 09-00348-CR-TCB-1

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                         versus

COREY RIEARA,
a.k.a. Pretty Black,

                                                               Defendant-Appellant.


                              ________________________

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

                                     (June 4, 2010)

Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
       Corey Rieara1 appeals from the district court’s imposition of a sentence

above the advisory Sentencing Guidelines range for his violation of the terms of

his supervised release. He argues that the district court erred by considering

unproven conduct and unreliable hearsay. He also contends that his sentence was

substantively unreasonable. Having considered these arguments in light of the

record, we affirm.

                                                 I

       In 2000, Rieara was sentenced to nine years’ imprisonment following his

guilty plea to drug-possession charges under 21 U.S.C. § 841(a)(1). The

sentencing court also imposed a three-year term of supervised release under 18

U.S.C. § 3583. Rieara was released from prison in 2008.

       In 2009, Rieara was arrested by police in Sandy Springs, Georgia for a

deadly shooting at an apartment complex. The extent of Rieara’s involvement was

unclear, but he had been shot in the leg, and police found his cell phone, one of his

shoes, and his fingerprint near the apartment where the shooting occurred.

Although state authorities initially charged Rieara with murder and firearms-

possession offenses, he was never indicted. Upon learning of the state charges, a



       1
         Rieara claims that his real name is Joseph Ellis, which is what his state parole officer
called him. For the sake of consistency with our case caption, we refer to him as Cory Rieara.

                                                 2
federal probation officer petitioned for the revocation of Rieara’s supervised

release on the grounds that he had committed crimes, frequented places where

drugs were used or distributed, and associated with persons engaging in criminal

activity. After considering the testimony of Rieara’s state parole officer and the

lead detective in the Sandy Springs investigation, the district court revoked

Rieara’s release and sentenced him to three years in prison and an additional two

years of supervised release. Rieara appeals.

                                                 II

       At Rieara’s revocation hearing, his attorney conceded that he had violated

Georgia law by lying to the police about whether he had rented a car and gone to

work on the day of the shooting.2 The Government informed the court that these

lies constituted a Grade C violation of Rieara’s supervised release under U.S.S.G.

§ 7B1.1(a), and the parties agreed that the Sentencing Guidelines’ advisory range

was three to nine months under U.S.S.G. § 7B1.4.3 Rieara’s attorney asked for a



       2
          See O.C.G.A. § 16-10-20 (“A person who knowingly and willfully . . . makes a false,
fictitious, or fraudulent statement or representation . . . in any matter within the jurisdiction of
any department or agency . . . of the government of any county, city, or other political subdivision
of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or
by imprisonment for not less than one nor more than five years, or both.”).
       3
        On appeal, the Government has suggested for the first time that Rieara committed a
more serious, Grade B violation. We decline to consider this argument and assume, for our
purposes, that the district court sentenced Rieara for a Grade C violation.

                                                 3
three-month sentence, but the Government requested a nine-month sentence

because Rieara had been “associated” with a “drug deal gone bad.”

      Rieara denied any involvement in the shooting and argued that the evidence

gathered from the apartment complex was insufficient to connect him with any

criminal activity. Through his attorney, Rieara claimed that he had been shot for

unknown reasons outside a nearby gas station. In response, the Government

proffered the testimony of his state parole officer, who recounted a jailhouse

conversation she had had with him after his arrest. During that conversation,

Rieara had told her that he had been shot at the apartment complex after going

there to buy marijuana.

      The Government also introduced the testimony of David Romero, the lead

detective at the scene of the shooting. After the court overruled Rieara’s hearsay

objection, Detective Romero testified that Rieara had told another police officer

the story about being shot outside the gas station. Romero also testified that

although his investigation had uncovered evidence of drug sales and a shootout at

the apartment complex, no evidence of any altercation had been found at the gas

station.

      After receiving this testimony, the court revoked Rieara’s supervised

release. The court observed that Rieara had admitted lying to the police about

                                         4
renting a car and going to work. And the court noted “pretty compelling”

evidence that the shooting “was a drug deal that went bad.” Finally, the court

found that Rieara was “clearly guilty” of associating with criminals and

frequenting places where illegal drugs were sold because his story about being

shot at the gas station “didn’t add up.” After entertaining argument on the

appropriate sentence, the court imposed a three-year prison sentence and two more

years of supervised release.

                                                III

       We review the sentence imposed upon the revocation of a defendant’s

supervised release for an abuse of discretion. See United States v. Livesay, 587

F.3d 1274, 1278 (11th Cir. 2009). The question is whether the sentence was

reasonable in light of the considerations outlined in 18 U.S.C. § 3553(a).4 United

States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). We review the district

court’s factual findings for clear error, United States v. Askew, 193 F.3d 1181,



       4
          See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (“[T]he district court
must consider several factors to determine a reasonable sentence: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need to
reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the
need to provide the defendant with needed educational or vocational training or medical care; (6)
the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy
statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;
and (10) the need to provide restitution to victims.” (citing 18 U.S.C. § 3553(a))).

                                                 5
1183 (11th Cir. 1999), and Rieara bears the burden of establishing that his

sentence is unreasonable, United States v. Clay, 483 F.3d 739, 743 (11th Cir.

2007).

      Rieara’s first argument on appeal is that the district court impermissibly

based his sentence on speculation and unproven conduct. We disagree. The

district court was required to consider “the circumstances of the offense” before

imposing sentence. 18 U.S.C. § 3553(a)(1). We may not limit “the information

concerning the background, character, and conduct of a person convicted of an

offense [that] a court of the United States may receive and consider for the

purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. Accordingly,

we have held that district courts may even consider conduct for which a defendant

has been acquitted if the Government has proved it by a preponderance of the

evidence. United States v. Faust, 456 F.3d 1342, 1347 (11th Cir. 2006).

      At any rate, the district court did not sentence Rieara for any unproved role

in the apartment-complex shooting. On the contrary, the court considered the

circumstances surrounding Rieara’s lies to the police during a murder

investigation. In light of Rieara’s statements to his parole officer and the evidence

linking him to the scene of the crime, the district court did not err by concluding

that Rieara’s misconduct was more serious than a simple false statement.

                                          6
      The court did refer to several “misrepresentations,” regarding the identity of

Rieara’s girlfriend and his living arrangements, that he apparently never made.

But the transcript of Rieara’s revocation hearing shows that the court referred to

those misrepresentations only once, and in passing. We therefore conclude that its

error was harmless. See Williams v. United States, 503 U.S. 193, 203 (1992) (“[A]

remand is appropriate unless the reviewing court concludes, on the record as a

whole, that the error was harmless, i.e., that the error did not affect the district

court’s selection of the sentence imposed.”).

      Rieara’s second argument is that the district court impermissibly relied on

unreliable hearsay when it considered Detective Romero’s testimony. “Although

the Federal Rules of Evidence do not apply in supervised release revocation

hearings, the admissibility of hearsay is not automatic. Defendants involved in

revocation proceedings are entitled to certain minimal due process requirements.

Among these minimal requirements is the right to confront and cross-examine

adverse witnesses.” United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994)

(citations omitted). We have thus held that before admitting hearsay evidence in

revocation proceedings, district courts “must balance the defendant’s right to

confront adverse witnesses against the grounds asserted by the government for

denying confrontation.” Id.

                                            7
       It is undisputed here that the court did not conduct this balancing test.

Nevertheless, we conclude that the error was harmless. See Frazier, 26 F.3d at

114; United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (“An error is

harmless unless there is a reasonable likelihood that it affected the defendant’s

substantial rights.” (quotation marks and brackets omitted)). The hearsay

testimony elicited from Detective Romero merely repeated the gas-station story

that Rieara, through counsel, had already told the court.5 Even if the court had

excluded the hearsay, its conclusion that Rieara’s story “didn’t add up” would

have been the same.

       Finally, Rieara argues that his sentence was substantively unreasonable

under 18 U.S.C. § 3553(a). But “[t]he weight to be accorded any given § 3553(a)

factor is a matter committed to the sound discretion of the district court,” and we

will only vacate a sentence “if we are left with the definite and firm conviction that

the district court committed a clear error of judgment” by imposing “a sentence



       5
          The Government argues that this was not hearsay because it was not offered to prove
that Rieara’s story was true. Cf. Fed. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.”). This argument relies on a faulty understanding of the relevant
inquiry. Rieara’s own statements were not hearsay because they were admissions by a
party–opponent. See id. 801(d)(2). The hearsay in this case consisted in the statements of the
nontestifying officer who told Detective Romero what Rieara had said. Romero’s testimony was
offered to prove the truth of the matter asserted—namely, that Rieara had given the other officer
a potentially false alibi.

                                                8
that lies outside the range of reasonable sentences dictated by the facts of the

case.” Clay, 483 F.3d at 743 (quotation marks omitted). Our review is

deferential: “A district court may impose a sentence that is either more severe or

lenient than the sentence we would have imposed,” as long as its sentence is

reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

       Rieara’s sentence was below the statutory maximum of five years,6 and the

district court explained that all of the § 3553(a) factors had been “carefully

considered.” Cf. Talley, 431 F.3d at 786 (“[W]hen the district court considers the

factors of section 3553(a), it need not discuss each of them.”). The court

specifically addressed Rieara’s criminal history and the fact that he had obstructed

a murder investigation. That we might have imposed a more lenient sentence is

irrelevant; “there is a range of reasonable sentences from which the district court

may choose,” id. at 788, and we cannot say on the record before us that the court

abused its discretion. Rieara’s sentence is therefore

       AFFIRMED.




       6
         See 18 U.S.C. § 3583(e)(3) (“[A] defendant whose term is revoked under this paragraph
may not be required to serve on any such revocation more than 5 years in prison if the offense
that resulted in the term of supervised release is a class A felony . . . .”). Rieara’s 2000 drug
conviction was a class A felony. See id. § 3559; 21 U.S.C. § 841(b)(1)(A)(iii).

                                                9
