     Case: 15-11265   Document: 00513856867        Page: 1   Date Filed: 01/31/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                    No. 15-11265                      FILED
                                                               January 31, 2017
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

             Plaintiff - Appellee

v.

MARQUIST THEOBLES WILLIAMS,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Northern District of Texas


Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
      The district court revoked the defendant’s supervised release and
sentenced him to prison. Despite not having raised an objection at the time,
the defendant now complains that the district court violated his due process
right to confrontation by considering hearsay. Finding no plain error, we
affirm.
                                         I.
      Marquist Williams pleaded guilty to possession of a firearm in
furtherance of a drug trafficking crime, earning him a sentence of sixty months’
imprisonment and three years’ supervised release. He served that prison term,
but then during his supervised release, the probation office petitioned to revoke
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                                         No. 15-11265
for violating his release terms. A Supervised Release Violation Report (SRVR)
alleged that Williams possessed controlled substances, intentionally submitted
“invalid” or “dilute” urine samples, and advised other addicts how to do the
same. Williams pleaded “true” to the SRVR. The district court found that
Williams violated the conditions of his release, adopted the SRVR, and
sentenced him to twenty-four months’ imprisonment and an additional twenty-
four months’ supervised release.
                                               II.
         Williams contends that the district court plainly erred by admitting into
evidence in the revocation hearing the hearsay statement that he helped other
addicts cheat on their drug tests. Because a revocation hearing is not a criminal
prosecution, “the full panoply of rights due a defendant in such a proceeding
does not apply.” 1 By way of example, the Federal Rules of Evidence do not
apply. 2 At the same time, revocation defendants are not wholly without
protection. Due process requires that a revocation defendant have “the right to
confront and cross-examine adverse witnesses (unless the hearing officer
specifically finds good cause for not allowing confrontation).” 3 Thus, if the
government in a revocation proceeding wishes to offer hearsay evidence, it
must show “good cause” for pretermitting live testimony. 4
         In determining whether to invoke the Morrissey “good cause”
         exception to a defendant’s right of confrontation, courts are
         instructed to employ a balancing test in which they are to weigh
         “the [defendant’s] interest in confronting a particular witness
         against the government’s good cause for denying it, particularly



         1   Morrissey v. Brewer, 408 U.S. 471, 480 (1972).
         2   FED. R. EVID. 1101(d)(3); United States v. Grandlund, 71 F.3d 507, 509 (5th Cir.
1995).
         United States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995) (quoting Morrissey, 408
         3

U.S. at 489); see also FED. R. CRIM. P. 32.1(b)(2)(c).
       4 McCormick, 54 F.3d at 221.

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                                      No. 15-11265
       focusing on the ‘indicia of reliability’ of a given hearsay
       statement.” 5

       Williams’s objection being admittedly unpreserved, we review for plain
error. 6 “A plain error is a forfeited error that is clear or obvious and affects the
defendant’s substantial rights. When those elements are shown, this court has
the discretion to correct the error only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” 7
                                            III.
       We find no plain error. Even assuming a clear and obvious error, the
district court’s consideration of the hearsay could not have affected Williams’s
substantial rights. Absent an exception, Williams was subject to mandatory
revocation and imprisonment pursuant to 18 U.S.C. § 3583(g) because, as he
admitted, he possessed a controlled substance and failed more than three drug
tests in one year. 8 Even absent the complained-of hearsay evidence, the district
court was thus required to revoke Williams’s supervised release and imprison
him. So to the extent that the district court considered the hearsay statement
at all, it could have done so only in connection with the length of Williams’s
prison sentence. A revocation defendant’s due process right to confrontation
does not apply in connection with the length of any resulting prison sentence. 9
Accordingly, Williams’s substantial rights went necessarily unaffected by the
hearsay.



       5  Id. (quoting United States v. Kindred, 918 F.2d 485, 486 (5th Cir. 1990)).
       6  United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
        7 United States v. Diaz, 637 F.3d 592, 601 (5th Cir. 2011) (internal quotation marks

and citations omitted).
        8 18 U.S.C. § 3583(g)(1), (4).
        9 See United States v. Jimenez, 275 F. App’x 433, 438 (5th Cir. 2008) (unpublished)

(“[B]ecause [the defendant] does not challenge the decision to revoke his supervised release,
but only his revocation sentence, the right to confrontation under Morrissey does not apply
to this case.”); United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006).
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                                       No. 15-11265
       Williams argues that he might have been entitled to relief from the
§ 3583(g) mandate under 18 U.S.C. § 3583(d) but for the district court’s
consideration of the hearsay. That section reads:
       The court shall consider whether the availability of appropriate
       substance abuse treatment programs, or an individual's current or
       past participation in such programs, warrants an exception in
       accordance with United States Sentencing Commission guidelines
       from the rule of section 3583(g) when considering any action
       against a defendant who fails a drug test. 10

However, even assuming that Williams qualified for relief under § 3583(d), he
has not met his burden to convince us that the district court would have
exercised its discretion under that section. 11 In fact, the record reveals that
Williams’s history of participation in treatment programs has been
unsuccessful and sporadic, making it unlikely that the district court would
have opted to sentence Williams to further treatment in lieu of mandatory
revocation and imprisonment.
       Because Williams has not demonstrated that any error affected his
substantial rights, we find no plain error.
                                             IV.
       For the reasons described, the judgment of the district court is affirmed.




       10  18 U.S.C. § 3583(d).
       11  See United States v. Olano, 507 U.S. 725, 734 (5th Cir. 1993) (burden of persuasion
falls on defendant claiming plain error to demonstrate that his or her substantial rights were
affected).
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