                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 09-14114                ELEVENTH CIRCUIT
                                                           OCTOBER 5, 2010
                        Non-Argument Calendar
                                                             JOHN LEY
                      ________________________
                                                              CLERK

               D. C. Docket No. 01-00032-CR-3-LAC-MD

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

WARREN CHARLTON,

                                                        Defendant-Appellant.


                      ________________________

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

                            (October 5, 2010)

Before EDMONDSON, BLACK and MARTIN, Circuit Judges.

PER CURIAM:
       Warren Charlton appeals his 24-month sentence imposed following

revocation of his term of supervised release under 18 U.S.C. § 3583(e)(3). On

appeal, Charlton contends the district court plainly erred by imposing an upward

departure based solely on hearsay statements contained in the revocation petition

filed by his probation officer. He observes that the district court failed to follow

the procedures for considering hearsay evidence set forth in United States v.

Frazier, 26 F.3d 110 (11th Cir. 1994).

       Where, as here, a defendant did not raise a claim of sentencing error before

the district court, we review only for plain error. United States v. Dudley, 463 F.3d

1221, 1227 (11th Cir. 2006). Under the plain error standard, the defendant must

show: (1) an error, (2) that is plain, and (3) that affects his substantial rights. Id. If

all three factors are met, we “may exercise discretion and correct the error if it

seriously affects the fairness, integrity, or public reputation of the judicial

proceedings.” Id. For an error to be plain, it must be “clear under current law.”

United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (quotation omitted).

If neither our Court nor the Supreme Court has resolved an issue, the defendant

cannot establish plain error with respect to that issue. Id.

       “[P]lain error review should be exercised sparingly, and only in those

circumstances in which a miscarriage of justice would otherwise result. . . . [W]e



                                             2
have explained that our power to review for plain error is limited and

circumscribed, that the plain error test is difficult to meet, and that the plain error

rule places a daunting obstacle before the appellant.” United States v. Rodriguez,

398 F.3d 1291, 1298 (11th Cir. 2005) (quotations and citations omitted).

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

revocation hearings, the admissibility of hearsay is not automatic.” Frazier, 26

F.3d at 114. “Defendants involved in revocation proceedings are entitled to certain

minimal due process requirements[,]” including “the right to confront and

cross-examine adverse witnesses.” Id. Before hearsay evidence may be admitted

at a revocation hearing, the district court therefore “must balance the defendant's

right to confront adverse witnesses against the grounds asserted by the government

for denying confrontation.” Id.1

       To establish a due process violation resulting from the district court’s

admission of hearsay evidence in a sentencing hearing, “[t]he defendant must show


       1
          Frazier involved a challenge to a district court’s finding that the defendant violated the
terms of supervised release. See Frazier, 26 F.3d at 114. We have not addressed whether a
district court must conduct a Frazier analysis before considering hearsay evidence in connection
with a sentence imposed following revocation of supervised release. Nevertheless, the standard
for admission of hearsay at sentencing is analogous to the Frazier standard. Cf. United States v.
Baker, 432 F.3d 1189, 1253 (11th Cir. 2005) (explaining that a district court may consider
hearsay evidence at sentencing, “provided that the evidence has sufficient indicia of reliability,
the court makes explicit findings of fact as to credibility, and the defendant has an opportunity to
rebut the evidence”). Moreover, both parties analyze this case under Frazier. Therefore, we
assume for the purposes of this appeal that Frazier applies to a sentence imposed following
revocation of supervised release.

                                                 3
(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) (quotation omitted). “While it may be advisable and in

some instances necessary for a district court to make distinct findings regarding the

reliability of hearsay statements used at sentencing, the absence of such findings

does not necessarily require reversal or remand where the reliability of the

statements is apparent from the record.” United States v. Gordon, 231 F.3d 750

(11th Cir. 2000).

      Although Frazier held a district court must engage in a balancing test when

the defendant objects to the admission of hearsay evidence, no published case in

this Circuit or the Supreme Court has held that a district court must explicitly

engage in such analysis in the absence of an objection. In fact, at least one court

has held in a published opinion that a district court does not commit reversible

error simply by failing to explicitly conduct a balancing test when no objection was

raised. See United States v. Stanfield, 360 F.3d 1346 (D.C. Cir. 2004). Because it

is not clear under our precedent whether the district court erred by failing to

explicitly conduct a balancing test in the absence of an objection, such failure

cannot constitute plain error.




                                            4
      We therefore review the district court’s admission of the hearsay evidence

for plain error despite the court’s failure to explicitly delineate its reasons for doing

so. Charlton has not met his burden of showing that the district court plainly erred

by finding that the facts found in the revocation petition, which were based on the

Texas police report, had “some indicia of reliability.” Taylor, 931 F.2d at 847.

Charlton has failed to demonstrate that the court’s implicit determination that the

evidence was sufficiently reliable to indicate a high risk of felonious conduct

constituted an error that is “clear or obvious, rather than subject to reasonable

dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). In other words,

even though the charges against Charlton were ultimately dropped, a reasonable

argument could be made that the revocation petition was sufficiently reliable to

indicate a high risk of new felonious conduct. The district court’s admission of the

hearsay evidence therefore did not constitute plain error. Accordingly, we affirm

Charlton’s sentence.

      AFFIRMED.




                                            5
