                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 DEC 31, 2008
                                No. 08-12627                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                   D. C. Docket No. 02-00366-CR-T-27-MSS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

CEDRIC GAY,

                                                             Defendant-Appellant.


                          ________________________

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

                              (December 31, 2008)

Before BLACK, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Cedric Gay appeals the district court’s revocation of his supervised release.
After review, we affirm.

                                     I. BACKGROUND

       In 2003, Gay pled guilty to possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and distribution of cocaine base,

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The district court imposed

concurrent sentences of 57 months’ imprisonment and three years’ supervised

release. While Gay was serving his supervised release term, Gay’s probation

officer filed a petition to revoke Gay’s supervised release because, inter alia, he

had been arrested and charged with aggravated battery and false imprisonment of

his girlfriend Diedre Carpenter.1

       At the revocation hearing, the district court heard testimony from Deputy

Ricardo Alves (who responded to a domestic robbery complaint by Carpenter on

the morning of March 8, 2008), Josepha Michelle Remon (Gay’s probation

officer), and Carpenter. The district court also reviewed both Carpenter’s

handwritten statement from March 8, 2008 detailing the domestic violence incident

and Deputy Alves’s pictures of Carpenter from March 8, 2008.



       1
          The petition also alleged that Gay violated the terms of his supervision by failing to
submit monthly reports and to notify his probation officer about a change in residence. The
district court found that Gay violated the requirement of submitting monthly reports but did not
revoke Gay’s supervised release on that basis. Thus, Gay does not challenge that violation on
appeal.

                                                2
      The district court found that Deputy Alves’s testimony was credible. The

district court noted that Deputy Alves had testified to observing a slight swelling

around Carpenter’s right eye and found that the photographs were consistent with

his testimony. The district court noted that it looked as though Carpenter had a

slight swelling to the right of her eye, on her upper cheekbone. The district court

also found that Carpenter’s demeanor in front of Deputy Alves was consistent with

being battered.

      The district court found that Carpenter’s testimony was not credible, stating,

“I don’t believe a word [Carpenter] said here today, other than the fact she

confirmed what she wrote down.” The district court noted that Carpenter now

denied being pregnant or having told Gay that she was pregnant by another man,

even though Carpenter and Gay made prior, contrary statements. The district court

stated that it did not know whether Carpenter was in fact pregnant.

      The district court found that Gay had committed a domestic violence battery

against Carpenter and said, “I don’t think there’s any question about it.” However,

the district court was unable to find aggravated battery because it did not know

whether Carpenter was pregnant. The court also found that the false imprisonment

charge was borne out by Carpenter’s statements that Gay had not allowed her to

leave the room, regardless of whether she left the residence every day. Thus, the



                                          3
district court found that Gay had violated the terms of his supervised release by

committing these two crimes. The district court said it was not clear that Gay

would be convicted of the offenses beyond a reasonable doubt, but the burden was

“a lot less” in a revocation proceeding.

        The district court revoked Gay’s supervised release and sentenced him to 18

months’ imprisonment and 18 months’ supervised release.

                                         II. DISCUSSION

        The district court did not abuse its discretion in revoking Gay’s supervised

release.2 Deputy Alves testified that Carpenter told him that Gay questioned and

beat her for six days after she told Gay that she was pregnant by another man.

Deputy Alves’s description of Carpenter’s appearance when he interviewed her

was consistent with Carpenter’s domestic violence complaint. Deputy Alves

testified that Carpenter was crying, appeared nervous, had a blanket or sheet

wrapped around her, and moved in “a very lethargic manner” as if she was in pain.

Deputy Alves also observed a “slight swelling” under Carpenter’s right eye that he

photographed. Carpenter’s lack of other visible bruising was consistent with her

        2
          A district court may “revoke a term of supervised release, and require the defendant to
serve in prison all or part of supervised release authorized by statute . . . if the court . . . finds by
a preponderance of the evidence that the defendant violated a condition of [his] supervised
release.” 18 U.S.C. § 3583(e)(3). This Court reviews a district court’s revocation of supervised
release for abuse of discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). The
district court’s findings of fact are binding unless clearly erroneous. United States v. Almand,
992 F.2d 316, 318 (11th Cir. 1993).

                                                    4
statement to Deputy Alves that Gay beat her in places that would not show bruises,

such as her head.

      In addition to Deputy Alves’s testimony, Carpenter wrote a detailed, sworn

statement describing Gay’s battery and imprisonment of her over a six-day period.

Carpenter said that she told Gay she was pregnant, Gay continuously questioned

her about the pregnancy, and Gay beat her in the face, head, and back when he did

not like her answers. Carpenter said that she screamed for help and picked up the

phone to call the police, but Gay stopped her. She also said that she tried to get out

of Gay’s room, but he picked her up and threw her across the room.

      It was within the province of the district court to assess the credibility of

Deputy Alves and Carpenter as they testified. See United States v. Copeland, 20

F.3d 412, 413 (11th Cir. 1994). Although Carpenter recanted her prior statements

that she told Gay she was pregnant and that Gay beat her, the district court was free

to disbelieve her testimony at the revocation hearing and to believe instead Deputy

Alves’s testimony and Carpenter’s prior written statement and statements to

Deputy Alves. In light of Deputy Alves’s testimony, Carpenter’s written

statement, and the photographs of Carpenter, the district court did not err in finding

by a preponderance of the evidence that Gay committed a battery against Carpenter

and falsely imprisoned her against her will.



                                           5
       Finally, Gay has not shown that the district court plainly erred in relying on

Deputy Alves’s testimony of the out-of-court statements made by Carpenter.3

While the Federal Rules of Evidence do not apply to revocation hearings, district

courts still must consider reliability and weigh “the defendant’s right to confront

adverse witnesses against the grounds asserted by the government for denying

confrontation” before admitting hearsay testimony. United States v. Frazier, 26

F.3d 110, 114 (11th Cir. 1994). Here, Carpenter herself testified at the hearing,

and Gay declined the opportunity to cross-examine her. Furthermore, Carpenter’s

statements to Deputy Alves and those written in her sworn statement were

consistent and reliable.

       For all the reasons above, we affirm the district court’s revocation of Gay’s

supervised release.

       AFFIRMED.




       3
         When an issue was not raised before the district court, this Court reviews for plain error
only. United States v. Heath, 419 F.3d 1312, 1314 (11th Cir. 2005). Plain error exists if there is
(1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the
fairness, integrity, or public reputation of judicial proceedings. Id.

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