                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 5 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 00-5230
                                                    (D.C. No. 98-CR-84-C)
    ORLANDO REED,                                        (N.D. Okla.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Judge, PORFILIO, and ANDERSON, Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      On August 17, 1998, defendant Orlando Reed entered a guilty plea to one

count of conspiring to defraud the United States under 18 U.S.C. § 371, a Class D

felony under 18 U.S.C. § 3559(a)(4). He was subsequently sentenced to serve

twenty-two months in prison. The district court also imposed a three-year term of

supervised release, to commence upon Reed’s release from prison. Reed served

his prison sentence, and his term of supervised release commenced on February

11, 2000.

      On August 3, 2000, the government filed a petition to revoke Reed’s

supervised release. In the petition, the government alleged that Reed violated the

terms of his supervised release by possessing a firearm and by physically

assaulting another person. Specifically, the government alleged that, on July 15,

2000, Reed forcibly entered the residence of Audra Jones in Bristow, Oklahoma,

and he physically assaulted Ms. Jones and threatened her and another individual,

Jeff Williams, with a firearm. After hearing evidence on September 28 and

October 10, 2000, the district court found that, while the evidence was

conflicting, the more credible evidence established that Reed did in fact assault

Audra Brown and threaten her and Mr. Williams with a firearm. The district

court therefore revoked Reed’s supervised release, and he was sentenced to serve

two years in prison under 18 U.S.C. § 3583(e)(3). Two years is the maximum




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                                          2
sentence permitted under § 3583(e)(3) for a revocation of supervised release

where the underlying crime is a Class D felony.

      On appeal, Reed alleges that the district court erred because there was

insufficient evidence to find that he violated the terms of his supervised release.

Reed also alleges that the district court erred in sentencing him to the maximum

sentence allowed by law. We reject both of Reed’s contentions, and we affirm

both the revocation of his supervised release and the sentence imposed.

      To revoke a term of supervised release, the district court must find by

a preponderance of the evidence that the defendant violated a condition of

his release. 18 U.S.C. § 3583(e)(3); United States v. Disney, ___ F.3d ___,

No. 00-2195, 2001 WL 686510, at * 1 (10th Cir. June 19, 2001). As the trier of

fact in a revocation proceeding, the district court has the exclusive function of

appraising the credibility of the witnesses, determining the weight to give their

testimony, and resolving any conflicts in the evidence. United States v. Leach,

749 F.2d 592, 600 (10th Cir. 1984). This court reviews a district court’s decision

to revoke a term of supervised release for abuse of discretion, and the district

court’s factual findings for clear error. Disney, 2001 WL 686510 at *1; United

States v. Hall, 984 F.2d 387, 390 (10th Cir. 1993). In reviewing the sufficiency

of the evidence, we must also view the evidence, and all reasonable inferences




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to be drawn therefrom, in the light most favorable to the government. Leach,

749 F.2d at 600.

      Here, the government presented testimony from two witnesses to support

the charges against Reed of assault and possession of a firearm. First, the

government presented testimony from Sergeant John Davis, the police officer

from the Bristow County Sheriff’s Department who responded to the scene of the

assault on July 15, 2000, and investigated the incident. Second, the government

presented testimony from Jeff Williams, the other individual who was threatened

with the firearm. To counter the government’s witnesses, Reed then put forth

testimony from two witnesses, Shayla White and Nicole White, to support an alibi

defense. However, the district court found that Reed’s alibi witnesses lacked

credibility, and it chose instead to believe the testimony of Sergeant Davis and

Jeff Williams. We hold that the district court’s credibility and other factual

determinations were not clearly erroneous and that the revocation of Reed’s

supervised release was therefore not an abuse of discretion.

      Further, it was not error for the district court to permit Sergeant Davis to

testify as to certain hearsay statements made by the victim of the assault, Audra

Brown. To the contrary, it is well established that a district court can rely on

reliable hearsay testimony at a revocation hearing, see United States v. Frazier,

26 F.3d 110, 114 (11th Cir. 1994); United States v. Waters, 158 F.3d 933, 940


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(6th Cir. 1998), and the district court specifically found that Sergeant Davis

“was a very reliable witness.” R., Vol. IV, at 14. The district court’s assessment

of Sergeant Davis’ reliability was not clearly erroneous. 1

      Finally, “[i]n reviewing the specific sentence of imprisonment imposed by

the district court after revocation of defendant’s supervised release and the

court’s explanation for that sentence, we will not reverse if it can be determined

from the record to have been reasoned and reasonable.” United States v. Lee,

957 F.2d 770, 774 (10th Cir. 1992). 2 We hold that the district court’s imposition

of the maximum sentence of two years under 18 U.S.C. § 3583(e)(3) was

reasonable given the violent nature of the crime at issue, the need to afford




1
       We note that the Federal Rules of Evidence do not apply to proceedings to
revoke a term of supervised release. Fed. R. Evid. 1101(d)(3);   Frazier , 26 F.3d at
113-14. However, a due process violation may occur if a district court relies on
unreliable hearsay or fails to properly balance the defendant’s right to confront
adverse witnesses against the grounds asserted by the government for denying
confrontation. Frazier , 26 F.3d at 114. There was no due process violation in
this case, however, since the hearsay testimony was reliable, and Reed’s inability
to confront Audra Brown was not the fault of the government. Instead, the
government subpoenaed Brown to testify at the revocation hearing, but she failed
to appear at the hearing.
2
       As the district court found, under the advisory policy statement in
USSG § 7B1.4(a), the recommended range of imprisonment for Reed, based on a
criminal history category of VI and a grade A violation, was 33 to 41 months.
However, under 18 U.S.C. § 3583(e)(3), two years is the maximum prison
sentence that can be imposed upon the revocation of supervised release for a
Class D felony, and the policy statement provides that the statutory maximum
sentence shall not be exceeded.   See USSG § 7B1.4(b)(1); R., Vol. V, at 4.

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adequate deterrence to criminal conduct, and the need to protect the public from

further crimes of the defendant. See 18 U.S.C. § 3553(a); United States v. White,

244 F.3d 1199, 1204 (10th Cir. 2001). 3

      The judgment of the United States District Court for the Northern District

of Oklahoma is AFFIRMED.


                                                    Entered for the Court


                                                    Deanell Reece Tacha
                                                    Chief Circuit Judge




3
       While the district court did not expressly consider these factors or set forth
the reasons for the sentence it imposed,  see Lee , 957 F.2d at 775-76 (setting forth
sentencing factors that district court must consider after revoking a term of
supervised release and noting that “sentencing court should state the reasons for
its actions”), this was harmless error given the fact that the imposition of a two-
year sentence for a violent assault and possession of a firearm was reasonable and
justified by the record in this case.

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