                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-12636                ELEVENTH CIRCUIT
                                       No. 10-12670                    APRIL 21, 2011
                                       No. 10-13637                     JOHN LEY
                                                                         CLERK
                                       No. 10-13638
                                   Non-Argument Calendar
                                 ________________________

                             D.C. Docket Nos. 1:94-cr-01012-MP-1
                                              1:10-cr-00012-MP-AK-1


UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                 Plaintiff-Appellee,

                                             versus

ERIC D. KIMBLE,

lllllllllllllllllllll                                              Defendant-Appellant.

                                 ________________________

                          Appeals from the United States District Court
                              for the Northern District of Florida
                                 ________________________

                                        (April 21, 2011)

Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

      Eric Kimble appeals his sentence of 48 months of imprisonment, which was

imposed after revocation of his supervised release. 18 U.S.C. § 3583(e)(3).

Kimble argues that the district court erred by relying on hearsay evidence without

considering his right to confront the victim or determining the reliability of the

hearsay as required by United States v. Frazier, 26 F.3d 110 (11th Cir. 1994), and

his sentence is procedurally unreasonable. Kimble also argues, for the first time

on appeal, that the district court should have struck sua sponte a violation listed in

the petition to revoke. We affirm.

      In 1995, Kimble pleaded guilty to conspiring to commit a carjacking,

carjacking, and possessing a firearm during that crime of violence. The district

court sentenced Kimble to 181 months of imprisonment followed by three years of

supervised release. In 2004, Kimble pleaded guilty to conspiring to possess with

intent to distribute heroin and was sentenced to 24 months of imprisonment and

three years of supervised release.

      In 2010, a probation officer charged Kimble with violating five conditions

of his supervised release in both his carjacking and drug cases: (1) committing a

new offense by falsely imprisoning and robbing Christopher Ramirez “with a

firearm”; (2) failing to “submit monthly reports”; (3) failing to submit to the

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officer a “financial disclosure statement”; (4) failing to “make restitution

payments”; and (5) possessing marijuana. Kimble admitted charges 2, 3, 4, and 5,

but he contested the first charge.

      At the revocation hearing, the United States presented testimony from Brett

Starr and Jeff Nordberg of the Gainesville Police Department about Kimble’s

crimes against Christopher Ramirez. Detective Jeff Nordberg testified about

statements that Ramirez had made to Nordberg and to another officer, and

Nordberg testified about other corroborating evidence. The district court found by

a preponderance of the evidence that Kimble had falsely imprisoned and robbed

Ramirez. The district court revoked Kimble’s supervised release and sentenced

him to serve concurrent terms of 24 months of imprisonment for charges 2 through

5 and to a consecutive term of 24 months of imprisonment for charge 1.

      Two days after the revocation hearing, Kimble moved the district court to

provide reasons for the sentence it had imposed and to reconsider its finding that

Kimble was guilty of charge 1. The district court granted Kimble’s motion in part

and conducted a new sentencing hearing. During the hearing, the district court

stated that it had “in fact consider[ed] the statutory conditions or matters that

should go into consideration in the imposition of any sentence, as well as the

guidelines . . . and the notes and the interpretations of them.” The district court

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denied Kimble’s motion to reconsider on the grounds that “there [had been]

nothing improper about introducing the statements of [Ramirez] through the

detective on the case”; Kimble had “acknowledge[d] that hearsay is admissible”

and had “himself relied upon hearsay”; and Kimble “could have subpoenaed the

victim as a witness,” but “did not choose to do so or to explain why not.”

      Kimble and the United States agree that the district court failed to comply

with Frazier, but the parties disagree about what standard of review applies to the

issue. Kimble argues that the issue should be reviewed for harmless error because

he raised the Frazier argument in his motion to reconsider and the district court

rejected his argument on the merits. The United States responds that Kimble’s

objection to the hearsay evidence was untimely and the issue should be reviewed

for plain error. We need not decide the correct standard of review. Even if

Kimble preserved the issue for our review, the error was harmless.

      Kimble was not harmed when the district court relied on Detective

Nordberg’s testimony to find Kimble guilty of violating a condition of his

supervised release or in sentencing Kimble. To violate Kimble’s right of due

process, Nordberg’s testimony must have been “materially false or unreliable” and

“actually served as the basis for [his] sentence,” United States v. Taylor, 931 F.2d

842, 847 (11th Cir. 1991), but Nordberg’s testimony was materially consistent

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with other evidence, see United States v. Gordon, 231 F.3d 750, 761 (11th Cir.

2000) (reliability of hearsay statements can be “apparent from the record”).

Nordberg’s testimony was consistent with Ramirez’s testimony at a deposition that

Kimble had entered Ramirez’s apartment carrying a glass jar with a clamp lid;

drew a .22 caliber handgun and forced Ramirez to relinquish his wallet; placed

plastic ties over Ramirez’s hands; used duct tape to cover Ramirez’s mouth and

bind his ankles; stole $960 composed largely of $20 bills; and threatened to kill

Ramirez if he pursued Kimble. Nordberg’s testimony about Ramirez being bound

was consistent with the testimony of Officer Brett Starr that he had photographed

pieces of severed duct tape and zip ties on the floor of Ramirez’s apartment.

Ramirez identified Kimble as his assailant during a photographic line-up, and

Nordberg examined cellular telephone records that established Ramirez and

Kimble had talked on the day of the robbery. Kimble admitted that he had

purchased marijuana from Ramirez and, when Nordberg arrested Kimble, he was

in possession of a glass jar with a clamp lid that contained marijuana and a billfold

containing a large number of $20 bills. Although Kimble complains about the use

of hearsay evidence against him, Kimble also relied on hearsay evidence. He

introduced during his revocation hearing affidavits to support his alibi defense and

he later submitted Ramirez’s deposition in support of his motion to reconsider.

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      The district court also did not plainly err by failing to strike sua sponte a

violation listed in Kimble’s petition to revoke his supervised release. Kimble

argues that the original judgment in his drug case “did not contain any express

condition . . . that [he] submit all financial documents as required by the probation

officer,” but this argument lacks merit. Kimble was charged with failing to submit

a financial report by a specific date as “instructed” by his probation officer, and

the third standard condition of Kimble’s supervised release required that he

“follow the instructions of [his] probation officer.”

      The district court committed no procedural error in sentencing Kimble. The

district court found by a preponderance of the evidence that Kimble had

committed a new offense, for which Kimble was subject to a sentencing range

between 24 and 30 months of imprisonment, United States Sentencing Guidelines

Manual § 7B1.4(a). Kimble’s sentence of 48 months of imprisonment is well

below the five-year statutory maximum sentence. 18 U.S.C. § 3583(e)(3).

Although the district court was not required to consider the sentencing factors

because Kimble “violate[d] a condition of supervised release prohibiting [him]

from possessing a firearm,” id. § 3583(g)(2), the district court nevertheless took

those factors into account in fashioning an appropriate sentence, see id. § 3553.

Kimble complains about the decision to impose consecutive sentences, but that

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decision is one “entrust[ed] to the [district] court’s discretion.” United States v.

Quinones, 136 F.3d 1293, 1295 (11th Cir. 1998); see 18 U.S.C. § 3584(a).

      The revocation of Kimble’s supervised release and his sentence are

AFFIRMED.




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