                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2714
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Keisha Leighann Boyd

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                            Submitted: January 16, 2015
                                Filed: July 2, 2015
                                 ____________

Before WOLLMAN, SMITH, and SHEPHERD, Circuit Judges.
                          ____________

SHEPHERD, Circuit Judge.

       Keisha Leighann Boyd appeared before the district court at a sentencing
revocation hearing. Boyd faced revocation based on multiple technical violations of
her supervised release and based on an allegation of burglary or theft. The district
court determined that Boyd had committed a Grade A violation and sentenced her to
19 months imprisonment. We reverse and remand for further proceedings.
                                          I.

       Boyd was convicted of aiding and abetting the distribution of
methamphetamine. After one unsuccessful attempt at supervised release that resulted
in additional prison time, Boyd was again placed on supervised release in January
2014. In May 2014, the government sought to revoke Boyd’s supervised release. At
the revocation hearing, Jay Hudson, Boyd’s supervising probation officer, testified he
had been assigned only in May 2014 to supervise Boyd after Michelle Sims, Boyd’s
previous supervising probation officer, retired.

       Officer Hudson began testifying about Boyd’s alleged violations of supervised
release. Boyd objected under Federal Rule of Criminal Procedure 31.2 because
Hudson testified based on the file maintained by the probation office. Boyd argued
“just because the probation officer [Sims] is not working there does not mean she is
not available” and “this witness [Hudson] has no personal knowledge of whether [the
underlying violations] did or did not happen.” (Revoc. Tr. at 11 and 13.) The district
court overruled the objections, holding that because Officer Hudson, the now-
supervising probation officer, was available to testify concerning the contents of
Boyd’s probation file, it was unnecessary to “go get Michelle Sims off retirement and
subpoena her a couple of hundred miles away to come into the courtroom and testify
about it.” (Revoc. Tr. at 28.)

       Jonesboro Police Officer Brandon King testified that Jonesboro police officers
conducted a traffic stop of Boyd’s vehicle based on a tip Officer King had received
indicating Boyd was involved with stolen property. During the stop, Boyd admitted
to Officer King that there was stolen property in the vehicle. She also admitted
knowing additional stolen property was at a local motel. Boyd escorted the officers
to the motel where they recovered additional stolen property. Boyd was charged in
state court with burglary and theft of property.



                                         -2-
       After hearing Officer King’s testimony, the district court determined Boyd’s
personal knowledge of the stolen property “would indicate that she was involved with
it in some way.” (Revoc. Tr. at 27.) After hearing arguments from the parties
concerning whether the government had proven burglary or just theft, the district court
found that Boyd had committed a Grade A violation of her supervised release, which
has a recommended revocation range of 15-21 months imprisonment. See United
States Sentencing Commission, Guidelines Manual, § 7B1.4(a) (stating range of
imprisonment for a Grade A violation with a Category II criminal history is 15-21
months). Based on that violation, the district court sentenced Boyd to 19 months
imprisonment.

        Boyd appeals, arguing (1) the district court violated her confrontation rights
when it permitted Officer Hudson to testify in the place of Officer Sims without first
determining that Officer Sims was unavailable, and (2) the district court abused its
discretion in determining Boyd committed a Grade A violation when there was no
evidence she had committed a burglary and no evidence as to the value of the
property, which would be necessary for a felony theft conviction.1 We reject Boyd’s
first argument but agree with her second. Accordingly, we reverse the district court’s
finding of a revocation violation and remand for further proceedings.

                                           II.

       The district court has the discretion to revoke supervised release if the
government proves by a preponderance of the evidence that the defendant violated a
condition of supervised release. 18 U.S.C. § 3583(e)(3) (“The court may . . . revoke
a term of supervised release, and require the defendant to serve in prison all or part of
the term of supervised release authorized by statute for the offense that resulted in

      1
       Boyd also argues the district court abused its discretion when it declined her
motion to continue the hearing to allow her time to subpoena a witness. As we reverse
her revocation on other grounds, this issue is moot.

                                          -3-
such term of supervised release . . . if the court . . . finds by a preponderance of the
evidence that the defendant violated a condition of supervised release.”). “We review
the district court’s decision to revoke supervised release for an abuse of discretion.”
United States v. Ahlemeier, 391 F.3d 915, 919 (8th Cir. 2004). “[T]he court’s
subsidiary factfinding as to whether or not a violation occurred is reviewed for clear
error.” United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003) (quotation
omitted). “Under clear error review, we may reverse only if we have a definite and
firm conviction that the District Court was mistaken.” United States v. Willis, 433
F.3d 634, 636 (8th Cir. 2006) (quotation omitted).

                                          A.

       First, we consider Boyd’s argument that the district court erred in allowing
Officer Hudson to testify in substitution for Office Sims, who had retired, thus
depriving Boyd of her right to question adverse witnesses. A supervised release
defendant is not entitled to a trial during a revocation hearing, the rules of evidence
are inapplicable, and the government has a lower burden of proof. See United States
v. Johnson, 710 F.3d 784, 788 (8th Cir. 2013). However, “[a] defendant is entitled to
‘an opportunity to appear, present evidence, and question any adverse witness unless
the court determines that the interest of justice does not require the witness to
appear.’” Id. (quoting Fed. R. Crim. P. 32.1(b)(2)(C)). When making this
determination, the district court “must balance the probationer’s right to confront a
witness against the grounds asserted by the government for not requiring
confrontation.” United States v. Bell, 785 F.2d 640, 642 (8th Cir. 1986). Although
there are no set rules for conducting this balancing of interests, as we stated in
Johnson, there are several common concerns to consider:

      “First, the court should assess the explanation the government offers of
      why confrontation is undesirable or impractical.” Second, a trial court
      should consider “the reliability of the evidence which the government
      offers in place of live testimony.” Ultimately, if “the government neither

                                          -4-
      shows that presenting live testimony would be unreasonably burdensome
      nor offers hearsay evidence that bears indicia of reliability, the
      probationer is entitled to confrontation.”

Johnson, 710 F.3d at 789 (citations omitted) (quoting Bell, 785 F.2d at 643).

       In Johnson, we reversed the district court when it allowed a probation officer
to read a police report into the record, reasoning “the lack of an explanation for a
witness’s unavailability against the reliability of the police report” balanced in favor
of the defendant’s right to confront an adverse witness. Id.

        This case presents a closer question than the one we addressed in Johnson.
First, the government does offer an explanation for Officer Sims’s absence—she had
retired from the probation office. While retirement alone should not always excuse
an officer from testifying in a revocation hearing, it does bear on the officer’s
availability. Second, Officer Hudson’s testimony was based on a probation document
produced by his agency, whereas in Johnson, the probation officer was seeking to
testify about a police report prepared by officers of a separate law enforcement
agency. See id. at 786. The testimony here concerned a document designed to report
on the status of a supervised release defendant, and Officer Hudson is personally
familiar with the processes for creating that document. And as Officer Hudson now
serves as Boyd’s supervising probation officer, the reliability of his testimony is more
certain than that of a probation officer testifying about a police report created by
another agency and designed to report on possible criminal activity. While the court
should have inquired further about Officer Sims’s present residence, whereabouts, and
availability to testify, we cannot say the court abused its discretion when it allowed
Officer Hudson to testify in substitution for Officer Sims.




                                          -5-
                                             B.

       Next, we address Boyd’s argument that the government failed to present
sufficient evidence to support the district court’s determination that she committed a
Grade A violation of her supervised release. The Sentencing Guidelines classify
supervised release violations as one of three “grades”: A, B, or C. See USSG
§ 7B1.1. Grade A violations are, as relevant here, for “conduct constituting (A) a
federal, state, or local offense punishable by a term of imprisonment exceeding one
year that (i) is a crime of violence, . . . or (B) any other federal, state, or local offense
punishable by a term of imprisonment exceeding twenty years.” USSG § 7B1.1(a)(1).
The district court determined that Boyd committed a Grade A violation. At the
hearing, counsels’ argument and the district court’s comments focused on whether
Boyd committed burglary, theft of property, or theft by receiving of property.2 The
district court did not, however, state which offense it found Boyd committed. The
government contends the district court determined Boyd was involved in a burglary,
and burglary is normally considered to be a crime of violence, see United States v.
Bearden, 780 F.3d 887, 896 (8th Cir. 2015) (holding generic burglaries constitute
crimes of violence for purposes of USSG § 4B1.2(a)), which constitutes a Grade A
violation, while, under Arkansas law, the highest penalty for theft of property or theft
by receiving stolen property is 20 years as Class B felonies, which would only qualify
under the Sentencing Guidelines as a Grade B violation. See Ark. Code Ann. § 5-36-
103(b)(1)(a) (theft of property exceeding $25,000 constitutes a Class B felony); Ark.
Code Ann. § 5-36-106(e)(1) (theft by receiving of property exceeding $25,000
constitutes a Class B felony); Ark. Code Ann. § 5-4-401(a)(3) (“For a Class B felony,
the sentence shall be not less than five (5) years nor more than twenty (20) years.”);
USSG § 7B1.1(a)(2) (Grade B violations for “conduct constituting any other federal,
state, or local offense punishable by a term of imprisonment exceeding one year”).


       2
        Questions also arose concerning the value of the stolen property, however the
district court prohibited the government from presenting testimony about the value.

                                            -6-
       The only evidence about the stolen property came from the testimony of Officer
King. He testified that when officers stopped a vehicle in which Boyd was a
passenger” (1) she admitted to knowing the property in the vehicle was stolen, (2) she
denied involvement in a burglary and claimed another person had stolen the property,
(3) she had knowledge of additional property that had been stolen at the same time as
the property in the vehicle, and (4) she knew the location of that additional stolen
property.

       “‘[T]he basic elements’ of generic burglary” are “‘unlawful or unprivileged
entry into, or remaining in, a building or structure, with intent to commit a crime.’”
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013) (quoting Taylor v. United
States, 495 U.S. 575, 599 (1990)). Under Arkansas law, “[a] person commits
residential burglary if he or she enters or remains unlawfully in a residential
occupiable structure of another person with the purpose of committing in the
residential occupiable structure any offense punishable by imprisonment.” Ark. Code
Ann. § 5-39-201(a)(1); see Young v. State, 288 S.W.3d 221, 225 (Ark. 2008)
(recognizing the statute does not require that property actually be stolen). The
government did not present any evidence that Boyd entered a structure (residential or
otherwise) or even that the stolen property in question came from a residence,
building, or structure. At best, the evidence presented at the revocation hearing could
show only that Boyd had knowledge that the property was stolen. Accordingly, the
district court, even under the low preponderance of the evidence standard, was without
sufficient evidence to find that Boyd participated in a burglary, and thus the
determination that Boyd had committed a Grade A violation was clearly erroneous and
warrants remand.

                                         III.

       Accordingly, we reverse the district court’s finding of a supervised release
violation and remand this matter to the district court. On remand, the record as it

                                         -7-
pertains to a claim of burglary may not be expanded because the government knew of
its obligation to present sufficient evidence of burglary and inexcusably failed to
comply with this obligation. See Johnson, 710 F.3d at 790. Because the district court
prohibited the government from presenting evidence as to the value of the stolen
property, the government may expand the record on that issue.
                         ______________________________




                                         -8-
