                                                          [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT                   FILED
                          ________________________       U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              February 24, 2006
                                No. 05-15003                THOMAS K. KAHN
                            Non-Argument Calendar               CLERK
                          ________________________

                      D. C. Docket No. 98-00439-CR-TWT-1

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

YOMI BALOGUN,
a.k.a. Damon Brown,

                                                          Defendant-Appellant.


                          ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                      _________________________

                              (February 24, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Yomi Balogun appeals his sentence of 24 months of imprisonment, which
was imposed for violations of the provisions of his supervised release. Balogun

makes three arguments on appeal: (1) the district court improperly admitted

hearsay evidence at his revocation hearing when the court permitted Balogun’s

probation officer to testify that Balogun had committed two offenses of identity

theft while on supervised release; (2) the district court abused its discretion in

denying Balogun’s motion for a continuance; and (3) the district court was

prejudiced against him. We reject each of Balogun’s arguments and affirm the

sentence.

                                 I. BACKGROUND

      In 1999, Balogun pleaded guilty to one court of wire fraud and was

sentenced to a term of 21 months of imprisonment followed by three years of

supervised release. In 2000, after serving his term of imprisonment, Balogun was

deported. Afterwards, Balogun illegally reentered the United States.

      In 2003, Balogun’s probation officer, Donna High, petitioned the United

States District Court to issue an arrest warrant for Balogun, and the district court

issued a show cause order. The petition alleged that Balogun had violated three

provisions of his supervised release. In 2005, High amended the petition and

charged Balogun with four violations: (1) Balogun illegally reentered the United

States without the approval of the Attorney General; (2) Balogun had failed to



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report for supervised release since his return to the United States; (3) Balogun

committed identity-fraud offenses in Illinois; and (4) Balogun failed to pay

restitution since his return to the United States and was $6200 in arrears. Balogun

was arrested in Illinois in July 2005 and was transferred to the Northern District of

Georgia to answer the charges in the petition.

      Before his revocation hearing, the government agreed not to proceed on the

identity-fraud charge, and Balogun agreed not to contest the other charges. At the

hearing, the parties informed the district court of the agreement. The district court

declined to accept the agreement and elected to hear evidence regarding the

identity-fraud offenses. Balogun moved for a continuance to prepare a defense to

the identity-fraud charges, which the district court denied.

      The government presented testimony from High that Balogun had been

arrested in 2002 in Illinois for identity fraud, and he had been deported in 2000.

High authenticated documents submitted in support of her petition as police reports

and investigative materials in connection with the charges of identity fraud in

Illinois. Balogun objected to the testimony of High and the admission of the police

reports as hearsay. At the conclusion of the hearing, the district court concluded

that Balogun had violated the conditions of his supervised release and sentenced

him to 24 months of imprisonment.



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                          II. STANDARD OF REVIEW

      We review the evidentiary rulings of the district court for abuse of

discretion. United States v. Wright, 392 F.3d 1269, 1276 (11th Cir. 2004); see

United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994). Erroneous evidentiary

rulings are subject to harmless error review. Frazier, 26 F.3d at 114. We also

review the denial of a motion for a continuance for abuse of discretion. United

States v. Bowe, 221 F.3d 1183, 1189 (11th Cir. 2000).

                                 III. DISCUSSION

      “Although the Federal Rules of Evidence do not apply in supervised release

revocation hearings, the admissibility of hearsay is not automatic. Defendants

involved in revocation proceedings are entitled to certain minimal due process

requirements.” Frazier, 26 F.3d at 114. Among the due process requirements

available at a revocation hearing is the right to confront adverse witnesses. Id. To

admit hearsay, the district court “must balance the defendant’s right to confront

adverse witnesses against the grounds asserted by the government for denying

confrontation[,]” and the court must find that the hearsay is reliable. Id. Because

the district court in Balogun’s hearing did not make the finding described in

Frazier, the district court erred when it admitted the hearsay evidence. Our

conclusion that the district court erred does not end our inquiry; the Frazier court



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acknowledged that this error still may be considered harmless. Id.

      To establish that the sentence imposed was harmful, Balogun must satisfy a

two-part test. “If admission of hearsay evidence has violated due process, the

defendant bears the burden of showing that the court explicitly relied on the

information. The defendant must show (1) that the challenged evidence is

materially false or unreliable, and (2) that it actually served as the basis for the

sentence.” United States v. Taylor, 931 F.2d 842, 847 (11th Cir. 1991) (internal

quotations marks and citations omitted). Balogun must satisfy both elements of

Taylor to show that his sentence was harmful.

      Balogun has not made either showing under Taylor. First, Balogun has

neither asserted that the police reports were false nor that he did not commit the

crimes alleged. Balogun has also not provided any sound basis for finding that the

police reports were unreliable. Second, Balogun cannot show that the hearsay

actually served as the basis for his sentence. Balogun admitted that he committed

three of the four alleged supervised release violations, which subjected him to the

maximum sentence of 24 months of imprisonment, and the district court stated that

the first reason for the sentence it imposed was Balogun’s illegal reentry. See

Taylor, 931 F.2d at 847-48; Frazier, 26 F.3d at 114.

      Balogun’s remaining arguments are without merit. There is no evidence that



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the district court was improperly biased against Balogun, and the district court did

not abuse its discretion when it denied Balogun a continuance to prepare a defense

to a charge in the petition. Although the government had agreed not to proceed on

the identity-fraud charge, the district court was not bound by the agreement, and

counsel was on notice to prepare a defense. Moreover, Balogun has not

established how he was prejudiced by the denial of a continuance.

                                IV. CONCLUSION

      Balogun’s sentence is

      AFFIRMED.




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