     Case: 14-40978      Document: 00513085499         Page: 1    Date Filed: 06/19/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                    No. 14-40978                              June 19, 2015
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                       Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ADAM LEE GOMEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:09-CR-983-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Adam Lee Gomez was convicted of possession with intent to distribute
1.72 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D),
and was sentenced to ten months of imprisonment and two years of supervised
release. His most recent supervised release term began on January 10, 2014.
The district court found that Gomez had committed the allegations in the
revocation petition regarding, inter alia, the new crime violations of sexual


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-40978     Document: 00513085499     Page: 2   Date Filed: 06/19/2015


                                  No. 14-40978

assault, felony assault, and terroristic threats based on Government exhibit 1,
the police report. The district court revoked Gomez’s supervised release and
sentenced him to two years of imprisonment and no further supervision. The
district court also ordered that the term of imprisonment was to run
consecutively to any term of imprisonment imposed for the sexual assault and
terroristic threats in state court.
      Gomez argues that the district court plainly and reversibly erred when
it determined that he had committed Class A violations of his supervised
release based upon the alleged victim’s out-of-court statements, without
finding that good cause existed to deny confrontation. The Government argues
that Gomez waived the right to challenge the district court’s consideration of
the sexual assault victim’s statement in the police report, and thus, the issue
is not reviewable.
      “Waiver and forfeiture are two different means by which a defendant
may react to an error by the government or the district court in the proceedings
in his case.” United States v. Dodson, 288 F.3d 153, 160 (5th Cir. 2002).
“Whereas forfeiture is the failure to make the timely assertion of a right,
waiver is the ‘intentional relinquishment or abandonment of a known right.’”
United States v. Olano, 507 U.S. 725, 733 (1993) (citation omitted). A claim
that is waived is “entirely unreviewable, unlike forfeited errors, which are
reviewable for plain error.” See United States v. Musquiz, 45 F.3d 927, 931
(5th Cir.1995).
      A defendant in a revocation hearing has a qualified right under the Due
Process Clause to confront and cross-examine adverse witnesses, which may
be disallowed upon a finding of good cause. United States v. Grandlund, 71
F.3d 507, 510 (5th Cir. 1996). “[C]ounsel in a criminal case may waive his
client’s Sixth Amendment right of confrontation by stipulating to the



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                                  No. 14-40978

admission of evidence, so long as the defendant does not dissent from his
attorney’s decision, and so long as it can be said that the attorney’s decision
was a legitimate trial tactic or part of a prudent trial strategy.” United States
v. Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980).
      The district court did not make a finding of good cause because Gomez
agreed, through his attorney, that Government exhibit 1, the police report, was
admissible as to the alleged new crimes violations. This agreement amounted
to an effective waiver of his right to confrontation. See Stephens, 609 F.2d at
232-33 (holding that counsel’s stipulation to admission of evidence waived
defendant’s constitutional right to confront the source of the evidence); see also
United States v. Reveles, 190 F.3d 678, 683 (5th Cir. 1999) (holding that
defendant waived his right to confrontation when he agreed to the admission
of statement by co-defendant). United States v. Burnett, 537 F. App’x 299, 303
(5th Cir. 2012), cited by Gomez, is distinguishable because it involved a lack of
objection - a forfeiture, not a waiver. If a defendant can waive his Sixth
Amendment right to confrontation, he can also waive his due process right to
a good cause determination concerning his qualified right to confrontation. See
United States v. Hodges, 460 F.3d 646, 650-51 (5th Cir. 2006). Gomez makes
no argument challenging counsel’s decision on the basis that it was not a
legitimate trial tactic or strategy. We need not speculate about the intentions
of counsel when the defendant does not call those intentions into question. See
Reveles, 190 F.3d at 683 n.6.
      AFFIRMED.




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