           Case: 13-13854   Date Filed: 07/25/2014   Page: 1 of 8


                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-13854
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:11-cr-00398-TCB-1


UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus


BJORN JAMAL GREEN,

                                                         Defendant-Appellant.

                      ________________________

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

                             (July 25, 2014)

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Bjorn Jamal Green appeals his sentences imposed following the revocation

of his supervised release based on Georgia state convictions. In August 2013, the

probation office filed a second amended petition alleging the following new

violations of law: (A) driving on a suspended license in April 2012; (B) an

additional instance of driving on a suspended license in April 2012; (C) battery

against a pregnant female and family violence battery in May 2012; (D) giving a

false name to a policeman in September 2012; and (E) two instances of cruelty to

children and one instance of family violence battery in July 2013.

      At the revocation hearing, Green contended that none of his alleged new

violations of law constituted anything higher than a Grade C violation of his

supervised release. He characterized the July 2013 convictions as being for third-

degree cruelty to children and simple battery. Green conceded that the July 2013

conviction would have been his second family violence battery conviction, but he

argued that it was reduced to a simple battery, so the district court would have to

establish the underlying conduct amounted to family violence battery in order to

find a Grade A violation.

      Officer M.S. Bailey and Detective H.C. Amos both testified that they spoke

to Korlus Freeman (“Korlus”) and Amanda Freeman (“Amanda”) in response to an

emergency call. Both of their testimonies were based on statements that Korlus

and Amanda had made immediately after the incident, and Bailey described Korlus


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and Amanda as frantic when she arrived. Their testimony was that Green got into

an argument with Korlus outside of Amanda’s apartment and eventually began

choking Korlus and threatening to throw her over the balcony. After Korlus yelled

to Amanda for help, Green went into the apartment, threw his and Korlus’s baby

into the air, and let the baby bounce off the sofa and onto the floor. It was

subsequently determined that the baby had a fractured skull.

      Amanda testified that she was grabbing Green, which caused him to

accidentally drop the baby. However, she conceded that she told police that Green

had thrown the baby up in the air. She stated that she was very angry and had

trouble focusing when she spoke with the police. At the revocation hearing, she

admitted that she did not clearly remember what happened on the night of the

incident.

      The district court concluded that a Grade A violation had occurred, based on

its conclusions that Green’s relevant conduct constituted first-degree cruelty to

children and family violence battery. The court relied on the testimonies of Bailey

and Amos, and explained that Amanda’s testimony was less reliable because she

admitted that she could not clearly remember what happened. The court then

imposed a total sentence of 21 months’ imprisonment that was to be followed by

an additional 3-month term of supervised release to be served in a half-way house.




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      On appeal, Green argues that the district court’s conclusion that he had

committed a Grade A violation was based upon clearly erroneous factual findings.

For the first time on appeal, he contends that Bailey and Amos’s testimonies

consisted of impermissible hearsay statements from Korlus and Amanda. He

asserts that the district court was required to make findings with regard to the

reliability or credibility of the hearsay statements before relying upon them.

Further, he argues, the court’s disqualification of Amanda’s testimony casts further

doubt on the reliability of the officers’ statements because their statements were

based in part on their respective interviews of Amanda. Finally, he concludes that

the government failed to satisfy its burden of establishing that Green had

committed first-degree cruelty to children or family violence battery to substantiate

the court’s finding of a Grade A violation.

      We generally review a sentence imposed upon revocation of supervised

release for reasonableness. United States v. Sweeting, 437 F.3d 1105, 1106-07

(11th Cir. 2006). We review findings of fact under the clearly erroneous standard.

United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). Evidentiary

objections that are not specifically raised at trial are reviewed for plain error only.

United States v. Williford, 764 F.2d 1493, 1502 (11th Cir. 1985).

      A sentence may be procedurally unreasonable if the court fails to properly

calculate the appropriate guidelines range. Gall v. United States, 552 U.S. 38, 50,


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128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007). The guideline range applicable upon

revocation of supervised release is set forth in U.S.S.G. § 7B1.4(a). The guideline

range is affected by what Grade the violation is classified as. U.S.S.G. § 7B1.4(a).

      Under plain error review, the defendant must show: “‘(1) error, (2) that is

plain, and (3) that affects substantial rights.’” United States v. Rodriguez, 398 F.3d

1291, 1298 (11th Cir. 2005) (citation omitted). We may then exercise our

discretion to notice a forfeited error, but only if “‘the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.’” Id. (citation

omitted). Under the plain error standard, error affects a defendant’s substantial

rights where that error affected the outcome of the case. United States v. Olano,

507 U.S. 725, 734, 113 S.Ct. 1770, 1778, 123 L.Ed.2d 508 (1993). There can be

no plain error where there is no statute, rule, or binding precedent in this Court

directly resolving the issue. United States v. Lejarde-Rada, 319 F.3d 1288, 1291

(11th Cir. 2003).

      A defendant facing possible revocation of supervised release is entitled to

some, but not all, of the procedural protections afforded a defendant in a criminal

proceeding. United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994). In

Frazier, we held that the Federal Rules of Evidence do not apply in revocation of

supervised release proceedings. United States v. Frazier, 26 F.3d 110, 114 (11th

Cir. 1994). Nevertheless, defendants are still entitled to certain minimal due


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process requirements, and the admissibility of hearsay is not automatic. Id. In

deciding whether or not to admit hearsay, the court must balance the defendant’s

right to confront adverse witnesses against the grounds asserted by the government

for denying confrontation. Id. Failure to conduct this balancing test constitutes a

violation of due process. Id.

      Once it is established that the admission of hearsay violated due process, the

defendant bears the burden of showing that the court explicitly relied on the

hearsay in revoking his supervised release. United States v. Taylor, 931 F.2d 842,

847 (11th Cir. 1991). The defendant must show: (1) that the challenged hearsay is

materially false or unreliable; and (2) that the challenged hearsay served as the

basis for the sentence. Id. We have stated that the absence of a district court’s

findings regarding the reliability of hearsay statements does not necessarily require

reversal or remand where the reliability of the statements is apparent from the

record. United States v. Gordon, 231 F.3d 750, 761 (11th Cir. 2000).

      Rule 803(2) of the Federal Rules of Evidence creates an exception for

“excited utterances,” which are statements “relating to a startling event or

condition, made while the declarant was under the stress of excitement that it

caused.” Fed.R.Evid. 803(2). We have explained that the excited utterance

exception does not require that the statement be made contemporaneously with the

startling event. United States v. Belfast, 611 F.3d 783, 817 (11th Cir. 2010).


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Rather, courts ruling on the exception should consider the totality of the

circumstances to determine if the declarant was still under the stress or excitement

of the startling event at the time she made the statement. Id.

      Green’s sentences are procedurally reasonable. Bailey described Korlus and

Amanda as frantic and Amanda admitted that she was very angry and had trouble

focusing when she spoke with the police. As Korlus and Amanda were both still

under the stress of the incident with Green, their statements would have been

admissible as excited utterances even under the stricter trial rules of admissibility.

See Fed.R.Evid. 803(2); see also Frazier, 26 F.3d at 114 (explaining that the

Federal Rules of Evidence do not apply in supervised release revocation

proceedings). As such, the district court did not plainly err in admitting the

statements or in relying upon them.

      Even assuming that a Frazier balancing test was appropriate in these

proceedings, there is no controlling authority that states that the district court must

explicitly engage in a Frazier balancing test in the absence of a contemporaneous

objection. See Lejarde-Rada, 319 F.3d at 1291. Thus, Green has not established

that the district court erred in admitting Bailey and Amos’s testimonies. As a

result, the district court correctly concluded that Green had committed a Grade A

violation, and his guideline range was properly calculated. Accordingly, Green’s

sentences are reasonable, and we affirm the district court.


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AFFIRMED.




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