                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               ______________

                                     No. 11-1672
                                   ______________

                          UNITED STATES OF AMERICA

                                          v.

                               VALERIE MANZELLA,

                                                            Appellant
                                   ______________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                         (D.C. Crim. No. 2-05-cr-00289-001)
                      Honorable Nora B. Fischer, District Judge
                                  ______________

                      Submitted under Third Circuit LAR 34.1(a)
                                   June 24, 2011

       BEFORE: HARDIMAN, VANASKIE, and GREENBERG, Circuit Judges

                               (Filed: August 29, 2011)
                                   ______________

                             OPINION OF THE COURT
                                 ______________

GREENBERG, Circuit Judge.

                                 I. INTRODUCTION

      This matter comes on before this Court on defendant Valerie Manzella’s appeal

from the District Court’s judgment dated March 3, 2011, revoking her term of supervised
release and sentencing her to a 12-month and one day custodial term, but without

provision for supervised release to follow the custodial term. We will affirm.

       Manzella initially pled guilty to one count of “Uttering a Counterfeit Security of

an Organization Involved in Interstate Commerce” in violation of 18 U.S.C. § 1513(a).

The District Court sentenced her to 30 months imprisonment for this offense, a term well

in excess of the advisory sentencing guidelines range of 2-8 months, to be followed by a

three-year term of supervised release. The Court imposed this long sentence because it

believed that the sentence was necessary for Manzella to be eligible for a 500-hour drug

treatment program that the Bureau of Prisons (BOP) offered. Manzella nevertheless

appealed and her appeal was successful as we vacated her sentence and remanded the

case to the District Court for resentencing. See United States v. Manzella, 475 F.3d 152

(3d Cir. 2007). On remand, Manzella requested that the District Court delay

resentencing her pending completion of the drug treatment program. The Court

accommodated her request and, after Manzella completed the program, it sentenced her

to time served, which equated to approximately 13 months imprisonment. On the

resentencing, however, it imposed the other conditions of her initial sentence, including

the three-year term of supervised release. Manzella did not appeal from the new

sentence.

       Shortly before the expiration of Manzella’s three-year term of supervised release

the United States Probation Department (Probation) filed a Petition on Supervised

Release (revocation petition) alleging that Manzella had committed the following acts

that were violations of the conditions of her supervised release:

                                             2
On January 31, 2010, Ms. Manzella was arrested on charges
of Theft By Unlawful Taking, Receiving Stolen Property, and
Access Device Fraud. The charges were all held for Court at
the preliminary hearing.

                             ...

On March 28, 2010, Ms. Manzella was charged with
Prohibited Acts - Use/Possession of Drug Paraphernalia. On
May 20, 2010, this charge was withdrawn and she entered a
guilty plea for Disorderly Conduct. According to the criminal
complaint, Ms. Manzella was in possession of two crack
pipes and a spoon with white residue.

                             ...

Ms. Manzella failed to report to the office for scheduled
office visits on April 13, 2010 and May 14, 2010.

                             ...

Ms. Manzella failed to report for scheduled drug testing on
May 7, 2010, and July 12, 2010. Furthermore, Ms. Manzella
tested positive for cocaine on July 14, 2010.

                             ...

Ms. Manzella failed to notify the Probation Officer, as
required, within 72 hours of being arrested or questioned by a
law enforcement officer on more than one occasion. Ms.
Manzella was arrested on January 31, 2010, and March 28,
2010, but did not report this law enforcement contact to the
Probation Officer until confronted by the Probation Officer
on later dates.

Ms. Manzella was cited with a summary traffic violation on
May 30, 2010, was questioned over the phone by a law
enforcement officer on May 30, 2010 regarding a Burglary
investigation, and had contact with a law enforcement officer
on June 7, 2010, at the police station relative to the
aforementioned burglary investigation and failed to report any
contact with law enforcement to the Probation Officer as


                              3
                required until confronted by the Probation Officer on later
                dates.

App. at 46-47. Five days later, Probation filed a Supplemental Petition on supervised

Release alleging that:

                On July 27, 2010, Ms. Manzella reported to the U.S.
                Probation Office to submit a drug test. During the drug
                testing process, a U.S. Probation Officer noticed that the
                defendant was attempting to circumvent urine testing
                procedures. The apparatus was confiscated and is currently in
                the Possession of the U.S. Probation Office.

                Ms. Manzella subsequently admitted to using Cocaine a few
                days prior to the aforementioned testing date.

App. at 49. 1

       On the proceedings on Probation’s petition Manzella admitted the charges of all of

the violations of supervised release alleged in the revocation petition except for the

charge that she committed a Pennsylvania state offense when she was arrested on January

31, 2010, and charged with theft by unlawful taking, receiving stolen property, and

access device fraud. Prior to the revocation hearing, it was established that Manzella’s

violations of supervised release relating to drug possession, use, and testing, had

stemmed from an incident in which Manzella was the victim of a violent sexual assault

and suffered injuries including a fractured clavicle. Following the sexual assault,

Manzella began to suffer from symptoms of post-traumatic stress disorder (PTSD) and


1
 Manzella apparently was arrested for burglary on August 24, 2010, but that arrest was
after her period of supervised release had ended, and so it is not relevant to this appeal.
According to testimony at the revocation hearing, she pled guilty to a lesser charge of
criminal trespass and was sentenced to a nine-month term of probation.

                                              4
was subject to pressure from people in her neighborhood to drop the criminal charges

against her attacker. Understandably, but nevertheless not justifiably, these

circumstances led to her drug relapse. After her attacker pleaded guilty, Manzella was

diagnosed with PTSD and received additional treatment for her drug addiction. She

completed a 28-day inpatient drug treatment program, began intensive outpatient therapy,

started seeing a therapist twice a week, and initiated a practice of attending Narcotics

Anonymous meetings on an almost-daily basis. Since that time, Manzella has not tested

positive for drugs, 2 and she received a job offer shortly before her revocation hearing.

       At Manzella’s revocation hearing the Government introduced into evidence,

without objection, police reports detailing the case against her which had resulted in the

state charges of theft by unlawful taking, receiving stolen property, and access device

fraud. The police reports noted that an individual had called police to report that one of

his debit cards was missing after he had been with Manzella and that when the individual

contacted his bank he learned that his card had been used to make more than $400 of

purchases. The individual subsequently presented a detective with his bank statements

showing that his card had been used for transactions within an hour of each other at two

Giant Eagle stores. The detective notified the head of loss prevention at Giant Eagle’s

corporate office and Giant Eagle provided him with a surveillance tape of the registers for

each purchase which showed several video angles of the same female leaving the store in


2
  Manzella volunteered to continue drug tests during the period after her term of
supervised release expired, but before her revocation hearing took place. During that
time she took 17 tests, all of which came back negative, although five of those tests were
deemed invalid because of high creatinine levels.
                                              5
all of the videos. The detective showed the victim pictures of the female and he

identified her as Manzella, an identification which led to Manzella’s arrest.

       At the revocation hearing on Probation’s petition Manzella introduced into

evidence a February 11, 2011 Allegheny County Court of Common Pleas Rule 586 Order

of Court dismissing the state charges involving her use of the debit card in exchange for

Manzella agreeing to pay restitution in the amount of $304.82 to the victim. There was

additional evidence at the hearing of Manzella’s wrongful use of the debit card as

Probation Officer Tara Kessler testified that Manzella admitted “the victim had given her

permission to charge a certain amount on the card but that she spent more than what he

had said and that’s why he filed the charges[,]” and that the amount of restitution that

Manzella agreed to repay to the victim was over $300. App. at 135-36.

       After the close of evidence, at the point at which the District Court was stating its

findings of fact and preparing to pronounce its judgment, Manzella objected to its

consideration of the police reports. The Court nevertheless found that Manzella had

committed a crime under Pennsylvania law, and, in noting Manzella’s late objection,

stated that “there’s corroborating evidence . . . that leads me to believe that there’s a

sufficient basis here under the preponderance of the evidence standard and given the rules

that are applicable to a revocation proceeding, that the Court’s ruling stands.” App. at

223. The Court determined that Manzella had committed a Grade B violation of

supervised release, which subjected her to an advisory sentencing range of 12 to 18

months imprisonment. On March 3, 2011, the Court entered its judgment revoking



                                               6
Manzella’s supervised release and sentencing her to a custodial term of 12 months and

one day.

       Manzella filed a timely notice of appeal and an unopposed motion for expedition

of the appeal which we granted on March 15, 2011. Manzella challenges both the

District Court’s judgment and her sentence in this appeal.



                  II. JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction under 18 U.S.C. §§ 3231 and we have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). A district court must find,

by a preponderance of the evidence, that the defendant violated a condition of supervised

release before it can revoke a defendant’s supervised release. 18 U.S.C. § 3583(e)(3).

We review a district court’s decision to revoke supervised release for an abuse of

discretion. United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008). We review a

district court’s factual findings supporting a decision to revoke supervised release for

clear error and exercise de novo review over questions of law that arise in a decision to

revoke supervised release. Id. We review the procedural and substantive reasonableness

of a district court’s sentence for supervised release violations for an abuse of discretion.

United States v. Young, 634 F.3d 233, 237 (3d. Cir 2011).



                                     III. DISCUSSION

       Manzella’s primary argument on appeal is that the District Court erred in

considering police reports regarding her alleged theft during the revocation hearing, as

                                              7
she contends that those reports contained inadmissible hearsay and the Court violated her

right to confront and cross-examine adverse witnesses by relying on the reports. There is,

however, an obvious problem with the argument because when the District Court asked

Manzella’s attorney whether she had objected to the admission of the police reports into

evidence, she responded “No Objection[.]” App. at 135. Moreover, on at least two

occasions in the revocation proceedings after the admission of the reports when

Manzella’s attorney had an opportunity to object to the use of the reports she did not do

so. See app. at 183, 206. Thus, although Manzella could have objected to the reports

earlier she did not object to them until after the District Court already had set forth factual

findings and was preparing to pronounce its judgment. Furthermore, even then she

objected only on hearsay grounds. See app. at 217. Therefore, though Manzella argues

on appeal that she was denied her right to confront and cross-examine adverse witnesses,

she did not assert in the District Court that she had any such right until the Court had

rendered its judgment. See app. at 222.

       Because Manzella’s objection to the use of the police reports was untimely, we

will review her claims challenging the consideration of those reports under the plain error

standard. Consequently, we have the discretion to reverse the District Court’s judgment

only if the admission of the reports affected her “substantial rights.” See Fed. R. Crim. P.

52(b). To constitute plain error, there must have been an obvious legal error, and, in the

circumstances of this case, Manzella has the burden of persuasion that the error was

prejudicial; that is, that the error affected the outcome of the proceedings. See United

States v. Olano, 507 U.S. 725, 732-35, 113 S.Ct. 1770, 1777-78 (1993). The Supreme

                                              8
Court has “explained that the discretion conferred by Rule 52(b) should be employed in

those circumstances in which a miscarriage of justice would otherwise result.” Id. at 736,

113 S.Ct. at 1779 (citations and internal quotation marks omitted).

       It is axiomatic that “a defendant charged with violating a release condition, unlike

a defendant charged with violating a statute, does not enjoy ‘the full panoply of rights’

normally available in a criminal proceeding.” United States v. Loy, 237 F.3d 251, 260

(3d Cir. 2001). Thus, in revocation hearings the defendant does not have a right to trial

by jury and the government must prove the charge of violation of supervised release only

by a preponderance of the evidence rather than by satisfying a more exacting standard.

The Supreme Court has explained that revocation hearings “should be flexible enough to

consider evidence including letters, affidavits, and other material that would not be

admissible in an adversary criminal trial.” Morrissey v. Brewer, 408 U.S. 471, 489, 92

S.Ct. 2593, 2604 (1972). And, while defendants in revocation hearings have a general

right to question adverse witnesses, that right is not absolute, as it does not apply if “the

court determines that the interest of justice does not require the witness to appear[.]”

Fed. R. Crim. P. 32.1(b)(2)(C). In determining whether the interest of justice requires a

witness to appear, we have held “that a district court ‘should apply a balancing test [in

revocation hearings] when considering the releasee’s asserted right to cross-examine

adverse witnesses,’ and that ‘[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.’” United States v. Lloyd, 566 F.3d 341, 344-45 (3d Cir. 2009) (quoting Fed.

R. Crim. P. 32.1(b)(2)(C) advisory committee’s note).

                                               9
       Here, as we previously discussed, Manzella did not object to the police reports

until after the close of evidence when the District Court was preparing to pronounce its

judgment, at which point Manzella objected on hearsay grounds. And, it was not until

after the Court concluded “that the facts are sufficient under a preponderance of evidence

standpoint to have me make the determination [that] there was a commission of a . . .

state crime in this case[,]” app. at 221, that Manzella made any objection to the police

reports on confrontation grounds. The late objections prevented the Court from

conducting a balancing test with respect to witnesses appearing, and determining, at a

point in the revocation hearing when it was still possible to call potential witnesses who

could have testified to the information in the reports, whether “the interest of justice . . .

required the witness to appear[.]” Fed. R. Crim. P. 32.1(b)(2)(C).

       We do not know why Manzella delayed making her objection to the reports but,

regardless of the reason for her delay, we do not view the District Court’s consideration

of the reports as having affected her substantial rights. Rather, when we consider all of

the evidence we conclude that Manzella has not met her burden of establishing that even

if there was an error in the District Court proceedings the error was prejudicial to the

extent that it affected the outcome of the District Court proceedings. In this regard, we

observe that the evidence at the revocation hearing included, besides the police reports,

which were supported by video evidence obtained from the Giant Eagle stores, direct

testimony, which the District Court found credible and that Manzella did not dispute or

rebut, that Manzella admitted that “the victim had given her permission to charge a

certain amount on the card but that she spent more than what he had said and that’s why

                                              10
he filed the charges[,]” and that the amount of restitution that Manzella agreed to repay to

the victim was over $300. App. at 135-36. Thus, even if we ignore the police reports,

there was a preponderance of evidence establishing that Manzella committed a state

offense as charged in the revocation petition. Accordingly, there was not a “miscarriage

of justice” in the District Court proceedings in this case calling for us to exercise our

discretion under Federal Rule of Criminal Procedure 52(b) to reverse the Court’s

judgment. See Olano, 507 U.S. at 736, 113 S.Ct. at 1779.

       Manzella also argues that the District Court erred, “by relying on a Pennsylvania

Rule 586 order of court dismissing state criminal charges as evidence of guilt of the

underlying charges.” Appellant’s br. at 44. She relies primarily for this contention on

our decision in United States v. Poellnitz, 372 F.3d 562, 570 (3d Cir. 2004), in which we

held that the district court’s consideration of a defendant’s nolo contendere plea to a state

crime “as evidence of [the defendant’s] commission of the underlying crime was

improper.” On remanding that case to the district court, we directed that, applying the

preponderance of evidence standard, “the District Court should take into account all

evidence in the record, including, but not limited to, evidence presented at [the

defendant’s] plea hearing”, and clarified that “[w]hat the District Court may not do . . . is

treat the nolo plea as an admission by [the defendant] that he committed the crime.” Id.

Here, we disagree with Manzella’s assertion that the District Court considered her

dismissal of the state charges under Pennsylvania Rule of Criminal Procedure 586 as

evidence of her guilt of those charges. Rather, the Court followed our directions in

Poellnitz to consider the Rule 586 dismissal in the context of the entirety of the evidence.

                                              11
In fact, the Court specifically discussed the import of our decision in Poellnitz, properly

applied it to the facts of this case, and concluded that the evidence was sufficient to find

that Manzella had committed a state crime. We therefore find no error with respect to

this issue.

       Manzella’s penultimate claim is that even considering the police reports and Rule

586 dismissal, the evidence was not sufficient to establish that she committed a state

crime by preponderance of the evidence. She also argues that even if there was sufficient

evidence to establish that she committed a state crime, that crime was not punishable by a

term of imprisonment exceeding one year, and, therefore, did not constitute a Grade B

violation of supervised release. See U.S.S.G. § 7B1.1(a)(2) (codifying that conduct

“constituting any other federal, state, or local offense punishable by a term of

imprisonment exceeding one year” is a Grade B violation).

       Manzella claims that there was insufficient evidence for the District Court to

conclude that she had the requisite intent to commit any of the three state offenses with

which she was charged—theft by unlawful taking, receiving stolen property, and access

device fraud—by a preponderance of the evidence. We disagree with that assertion.

Testimony at the revocation hearing established that Manzella admitted that she had used

the victim’s debit card at the Giant Eagle stores, charged more than she had been

authorized to spend, and agreed to pay restitution to the victim in excess of $300. That

uncontradicted evidence was sufficient for the Court to conclude by a preponderance of

the evidence that Manzella had the requisite intent to deprive the victim of his property

and knowledge that the property was stolen.

                                             12
       Manzella’s arguments that the government did not offer any direct proof that the

overcharge was not accidental or that she did not intend to repay the victim for the

overcharge are unavailing. Because “[d]irect evidence of a defendant’s mental state

frequently is unavailable,” a fact-finder “is entitled to scrutinize and make reasonable

inferences from defendant’s conduct and from all facts surrounding the incident in

question.” United States v. Peters, 462 F.3d 953, 957 (8th Cir. 2006) (quotation marks

and citations omitted). That is particularly true when the question is one of an

individual’s intent, as “[i]ntent frequently cannot be proven except by circumstantial

evidence; the determination [of intent] often depends on the credibility of witnesses, as

assessed by the factfinder.” United States v. Phythian, 529 F.3d 807, 812 (8th Cir. 2008)

(alteration in original) (quotation marks and citation omitted). We are satisfied that the

District Court properly considered the entirety of the evidence, and that sufficient

evidence in the record supported its factual findings and legal conclusions. If Manzella

wished to demonstrate that her overcharge was accidental or that she intended from the

outset to reimburse the victim, she should have presented some evidence supporting those

assertions to the District Court instead of relying on mere suggestions to that effect which

she does not support by any evidence to which she cites in her appellate brief.

       Likewise, the evidence was sufficient to establish that she committed a Grade B

violation of supervised release. Conduct constituting a state offense punishable by more

than one year in prison is a grade B violation. See U.S.S.G. § 7B1.1(a)(2). Under

Pennsylvania law, second degree misdemeanors and higher are punishable by a term of

imprisonment exceeding one year. See 18 Pa. Cons. Stat. Ann. § 106(b)(7) and (8) (West

                                             13
1998). Theft by unlawful taking and receiving stolen property are second-degree

misdemeanors if the value involved is greater than $50, but less than $200, and first-

degree misdemeanors if the value involved is greater than $200. See id. § 3903(b).

Access device fraud is a second-degree misdemeanor even if the value involved is less

than $50. See 18 Pa. Cons. Stat. Ann. §4106(c)(1)(iii) (West Supp. 2006). Testimony

established that Manzella agreed to reimburse the victim over $300, and Manzella did not

offer any evidence on her own behalf to suggest that the $300 figure was incorrect or

otherwise contradict that testimony. It was therefore reasonable for the District Court to

rely on that amount in determining that the state offenses constituted a Grade B violation.

       Manzella’s final claim that her sentence is procedurally and substantively

unreasonable is without merit, as, despite her protestations to the contrary, the District

Court gave meaningful consideration to the appropriate factors under 18 U.S.C. §

3553(a), and Manzella has not met her burden of establishing that her 12-month and one-

day sentence, which was at the low end of the guideline range of 12 to 18 months, was

unreasonable. Overall, we are satisfied that the Court did not abuse its discretion in

imposing Manzella’s sentence.

       Lastly, we note that Manzella’s arguments on appeal minimize the fact that she

was charged not only with committing a state offense in the revocation petition, but that

she was also charged with and admitted to offenses related to drug use. 3 Those drug-


3
  Although we question whether it was advisable to bring those drug-related charges in
the revocation petition given that Manzella voluntarily extended her initial term of
imprisonment in order to complete the BOP’s 500-hour drug treatment program, and the
reason for her relapse was that she was the victim of a sexual assault, after which she
                                             14
related offenses subjected her to mandatory revocation of supervised release, see 18

U.S.C. § 3583(g), and constituted Grade B violations because they were punishable by a

term of imprisonment exceeding one year due to her having a prior drug conviction. See

United States v. Cates, 613 F.3d 856, 857 (8th Cir. 2010); see also 21 U.S.C. § 844(a);

United States v. Bungar, 478 F.3d 540, 544 (3d Cir. 2007). Accordingly, even if we

rejected the District Court’s ruling that Manzella committed a state offense constituting a

Grade B violation, that rejection would not undermine the final judgment entered or

sentence imposed by the District Court because the drug offenses, to which Manzella

admitted, mandated revocation of her supervised release and were, themselves, Grade B

violations.




received additional drug treatment and remained sober once her attacker pleaded guilty,
we recognize that the decision to bring these charges is not subject to our review.

                                            15
