                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0273n.06
                                                                                           FILED
                                           No. 10-4165
                                                                                      Apr 28, 2011
                          UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff - Appellee,                      )
                                                  )       ON APPEAL FROM THE
v.                                                )       UNITED STATES DISTRICT
                                                  )       COURT FOR THE SOUTHERN
ROBERT JACKSON,                                   )       DISTRICT OF OHIO
                                                  )
      Defendant - Appellant.                      )
______________________________                    )
                                                  )


Before: GIBBONS and WHITE, Circuit Judges; and OLIVER, Chief District Judge.*

       HELENE N. WHITE, Circuit Judge. Defendant-Appellant Robert Jackson appeals the

district court’s revocation of his supervised release and imposition of a sentence of six months’

imprisonment and six months’ supervised release. He argues that the district court violated his due

process rights when it did not offer him an opportunity to cross examine the probation officer at the

supervised-release revocation hearing, and that the court’s sentence was procedurally unreasonable.

We affirm.

                                                 I.

       Jackson pleaded guilty on July 13, 2009 to interfering with public service at a federal

building in violation of 18 U.S.C. § 245(b). On October 14, 2009, he was sentenced to time served

plus one day, to be followed by one year of supervised release.

       *
       The Honorable Solomon Oliver, Jr., Chief Judge of the United States District Court for the
Northern District of Ohio, sitting by designation.
No. 10-4165
United States v. Jackson

        In April 2010, the United States Probation Office filed a Petition for Warrant for Offender

under Supervision, alleging six violations of the terms of Jackson’s supervised release. The alleged

violations were: 1) that he left the judicial district without permission (by driving to Indiana); 2) that

he failed to submit monthly written reports to his probation officer for January, February, and March

2010; 3) that he failed to notify his probation officer of a change of address; 4) that he used

marijuana (and admitted to the probation officer that he had done so); 5) that he committed a state

offense in Indiana (resisting law enforcement); and 6) that he failed to take psychiatric medication

as prescribed. The district court held a supervised-release revocation hearing on September 21,

2010.

        At the revocation hearing, Jackson admitted that he left the district without permission, that

he did not file written reports with his probation officer in February and March of 2010, and that he

was convicted of a state offense in Indiana. Jackson denied the other allegations (that he failed to

inform his probation officer of a change of address, that he had admitted to using marijuana, and that

he stopped taking, and admitted to not taking, his prescribed psychiatric medication). The district

court found that based on the three admitted violations alone, Jackson would be guilty of a Grade

B violation, which requires revocation of supervised release. The court then calculated the

maximum sentence for the violation under the Sentencing Guidelines: 12 months’ imprisonment.

The court heard from Jackson’s counsel and from the government regarding their suggestions for

sentencing, and provided Jackson with an opportunity to speak. The court then questioned the

probation officer about the charges Jackson had denied, but did not place the probation officer under

oath. The officer described his basis for alleging the three violations Jackson denied, the court

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No. 10-4165
United States v. Jackson

credited his testimony and found Jackson guilty of all six alleged violations. The court revoked

Jackson’s supervised release and sentenced him to six months’ imprisonment followed by six

months’ supervised release, to be served in a residential re-entry center. Jackson filed a timely

appeal.

                                                  II.

          Jackson argues that the district court violated due process by failing to allow him to cross

examine the probation officer, whose uncontested, and unsworn, statement provided the basis for

the court’s finding that Jackson committed the three alleged violations he did not admit. Jackson

did not request to cross-examine the probation officer at the hearing and did not object to the lack

of cross-examination or the court’s failure to place the officer under oath. Therefore, this Court’s

review is for plain error. United States v. Warman, 578 F.3d 320, 345 (6th Cir. 2009). To constitute

plain error, there must be “(1) error (2) that was obvious or clear, (3) that affected defendant’s

substantial rights and (4) that affected the fairness, integrity, or public reputation of the judicial

proceedings.” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc) (internal

quotation marks omitted).

          A district court may revoke a term of supervised release if it “finds by a preponderance of

the evidence that the defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e)(3).

“The same procedural requirements applicable to hearings regarding revocation of parole apply to

hearings regarding revocation of supervised release.” United States v. Lowenstein, 108 F.3d 80, 85

(6th Cir. 1997). In Morrissey v. Brewer, 408 U.S. 471 (1972), the Supreme Court held that, although

“the full panoply of rights due a defendant in [criminal prosecutions] does not apply to parole

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No. 10-4165
United States v. Jackson

revocations,” due process does require certain minimum procedural protections “to assure that the

finding of a parole violation will be based on verified facts and that the exercise of discretion will

be informed by an accurate knowledge of the parolee's behavior.” Id. at 480, 484. As announced

by the Morrissey Court, the minimum requirements of due process for revocation hearings include

“the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically

finds good cause for not allowing confrontation).” Id. at 489; see also Gagnon v. Scarpelli, 411 U.S.

778, 782 (1973) (discussing due process guarantees in revocation-of-probation hearings); United

States v. Kirby, 418 F.3d 621, 627-28 (6th Cir. 2005) (applying Morrissey to supervised-release-

revocation hearings). The constitutional requirements announced in Morrissey are codified in

Federal Rule of Criminal Procedure 32.1, which provides that in a revocation hearing the defendant

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.” Fed. R. Crim.

P. 32.1(b)(2)(C); see also Fed. R. Crim. P. 32.1, Advisory Committee Notes to the 2002

Amendments (explaining that in applying Rule 32.1(b)(2)(C), “[t]he court is to balance the person’s

interest in the constitutionally guaranteed right to confrontation against the government’s good cause

for denying it,” and citing Morrissey, 408 U.S. at 489). The “flexible evidentiary standard that

applies to revocation proceedings allows consideration of evidence that would be inadmissible in

a criminal prosecution,” but it does not strip the defendant of all protections. United States v.

Whitely, 356 F. App’x 839, 843 (6th Cir. 2009) (unpublished). Thus, Jackson had a presumptive

right to confront any adverse witness, which could be denied by the district court for good cause.



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No. 10-4165
United States v. Jackson

        Assuming, arguendo, that the court’s 1) consideration of the unsworn statement of the

probation officer and 2) failure to offer Jackson the opportunity to cross-examine the officer were

error, that error did not affect Jackson’s substantial rights. See Whitely, 356 F. App’x at 843 (“[W]e

can assume, without deciding, that the district court's consideration of the unsworn probation

officer's statements violated Whitely's rights and constituted an obvious error. We conclude,

however, that any error was harmless because it did not affect Whitely's substantial rights.”). For

an error to affect substantial rights, “in most cases . . . the error must have been prejudicial: It must

have affected the outcome of the district court proceedings.” United States v. Johnson, 403 F.3d

813, 815 (6th Cir. 2005) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)). Jackson cannot

make that showing here.

        Jackson admitted three of the alleged supervised-release violations. The court found that

those violations, alone, constituted a Grade B violation of supervised release, which required

revocation. See U.S.S.G. § 7B1.1(a) (describing grades of supervised-release violations); id. §

7B1.3(a)(1) (“Upon a finding of a Grade A or B violation, the court shall revoke . . . supervised

release.” (emphasis added)). At the conclusion of the hearing, after crediting the testimony of the

probation officer and finding Jackson guilty of all six violations, the court again determined that

Jackson had committed a Grade B violation. Thus, finding Jackson guilty of the additional three

violations as a result of the probation officer’s statement had no effect on the grade of the violation,

and thus no bearing on whether Jackson’s supervised release would be revoked or the Guidelines

range for the sentence upon revocation. With or without the officer’s statement, the court was

required to revoke Jackson’s supervised release, U.S.S.G. § 7B1.3(a)(1), and, pursuant to

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No. 10-4165
United States v. Jackson

§ 7B1.4(b)(3)(A), Jackson was subject to a maximum sentence of 12 months’ imprisonment upon

revocation. Thus, because Jackson has failed to demonstrate prejudice, we find no plain error.

                                                 III.

       Jackson also argues that his sentence was procedurally unreasonable because the district court

miscalculated his Guidelines range. This claim lacks merit.

       Jackson failed to object to the Guidelines’ calculation before the district court, which would

generally subject his reasonableness challenge to plain-error review. See United States v. Simmons,

587 F.3d 348, 354 (6th Cir. 2009). He argues that the court failed to ask the Bostic question, and

therefore that the sentence should be reviewed for reasonableness.1 See United States v. Thomas,

498 F.3d 336, 340 (6th Cir. 2007). Regardless of which standard applies, Jackson’s argument fails.

       A sentence is procedurally unreasonable “when the district court ‘fails to consider the

applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C. § 3553(a),

and instead simply selects what the judge deems an appropriate sentence without such required

consideration.’” United States v. Moon, 513 F.3d 527, 539 (6th Cir. 2008) (quoting United States

v. Jones, 489 F.3d 243, 250-51 (6th Cir. 2007)). Jackson contends that the court committed

procedural error when it “considered his Guidelines range to be 18-24 months, instead of the

properly calculated 12 months.” (Appellant’s Br. 12.) Jackson committed a Grade B violation, and

had a criminal history category of V. Pursuant to U.S.S.G. § 7B1.4(a), the Guidelines range would

be 18-24 months’ imprisonment. However, § 7B1.4(b)(3)(A) provides that the sentence may not be


       1
        After announcing the sentence, the court inquired:                  “Comments, suggestions,
objections . . . ?” (Hr’g Tr. 26, R. 55.) It did not ask the full Bostic question as typically phrased.

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No. 10-4165
United States v. Jackson

“greater than the maximum term of imprisonment authorized by statute.” The statutory maximum

sentence is found at 18 U.S.C. § 3583(e)(3), which sets the maximum term of imprisonment at 12

months based on the severity of Jackson’s original offense (a misdemeanor). Therefore, Jackson’s

effective Guidelines range was a maximum of 12 months’ imprisonment.

       The district court calculated a Guidelines range of 18-24 months pursuant to § 7B1.4(a), but

then immediately stated that “pursuant to Section 3583(e)(3), Title 18, the maximum term of

imprisonment upon revocation of Mr. Jackson’s supervised release is 12 months.” (Hr’g Tr. 23.)

The court then referenced the § 3553(a) factors, discussed reasons justifying the chosen sentence,

and announced a within-Guidelines sentence of six months’ imprisonment plus six months of

supervised release. The court recognized the correct Guidelines range and sentenced Jackson within

it. Contrary to Jackson’s assertion, the court did not believe the bottom of the applicable Guidelines

range was 18 months; it correctly identified the maximum possible sentence as 12 months.

Therefore, the sentence was procedurally reasonable.

                                                 IV.

       For the reasons stated above, we AFFIRM.




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