           Case: 18-11195   Date Filed: 02/05/2019   Page: 1 of 10


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-11195
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:11-cr-00199-KD-B-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                 versus

OZZIE THOMAS,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                            (February 5, 2019)

Before WILSON, NEWSOM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Ozzie Thomas appeals the district court’s decision to impose a 24-month,

within-guidelines sentence for violating the terms of his supervised release. At his

revocation hearing, the district court found that he had violated the conditions of

his release by sexually assaulting a woman, SR, at their apartment complex that

serves elderly and disabled individuals, in violation of § 13A-6-66 of the Code of

Alabama. 1

       On appeal, Thomas contends that the district court (1) improperly imposed

the “new model search condition” as a condition of his supervised release; (2)

violated both Federal Rule of Criminal Procedure 32.1(b)(2)(C) and United States

v. Frazier, 26 F.3d 110 (11th Cir. 1994), by admitting a hearsay statement from a

non-testifying witness; (3) relied on insufficient evidence to revoke his term of

supervised release; and (4) imposed a substantively unreasonable sentence. We

agree with his first contention, but disagree with the rest. Accordingly, we affirm

in part and remand in part.

                                                 I

       Thomas first challenges the imposition of the model search condition. The

district court stated that, upon his release from custody, Thomas would again be


1
  The statute proscribes “Sexual abuse in the first degree,” defined as either “(1) subject[ing]
another person to sexual contact by forcible compulsion; or . . . subject[ing] another person to
sexual contact who is incapable of consent by reason of being physically helpless or mentally
incapacitated.” ALA. CODE § 13A-6-66 (a)(1)–(2) (1975). Thomas was charged with sexual
contact by forcible compulsion.

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subject to a term of supervised release. At the end of Thomas’s revocation

hearing—and immediately before recessing—the district court stated that

Thomas’s probation officer could search his property and person “[u]pon

reasonable suspicion that [he] violated [his] conditions of release.”

      Here, the parties agree that the district court did not validly impose the

model search condition. In imposing a sentence—including a term of supervised

release—“the district court must give the parties an opportunity to object to the

court’s ultimate findings of fact, conclusions of law, and the manner in which the

sentence is pronounced, and must elicit a full articulation of the grounds upon

which any objection is based.” United States v. Campbell, 473 F.3d 1345, 1347

(11th Cir. 2007) (citing United States v. Jones, 899 F.2d 1097, 1102 (11th Cir.

1990), overruled on other grounds by United States v. Morrill, 984 F.2d 1136

(11th Cir. 1993)). The Government concedes that the district court “did not give

Thomas an opportunity to respond to the imposition of [the] new condition . . . by

objection or other means.” Indeed, the district court agreed to impose the

condition at the very end of the revocation hearing without asking for objections

from Thomas’s attorney. This is plainly inadequate under Jones. See id. at 1348

(noting that, “[i]n applying the Jones rule, this court has held that when the district

court merely asks if there is ‘anything further?’ or ‘anything else?’ and neither




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party responds with objections, then the court has failed to elicit fully articulated

objections and has therefore violated Jones”).


      Though it is clear that the district court erred, we agree with the

Government that we need not vacate the entire judgment here. “[W]hen a district

court fails to elicit objections after imposing a sentence, we normally vacate the

sentence and remand to the district court to give the parties an opportunity to

present their objections.” Id. at 1347. Accordingly, we remand in part to allow

the district court to elicit any objections from Thomas on the conditions of his

supervised release and to decide, in the face of those objections, whether to impose

the model search condition.

                                           II

      Next, Thomas claims that the court erred by admitting into evidence a

written statement made by a non-testifying witness, FM. In a revocation hearing, a

defendant is entitled to “question any adverse witness unless the court determines

that the interest of justice does not require the witness to appear.” Fed. R. Crim. P.

32.1(b)(2)(C). “[T]he right to confront and cross-examine adverse witnesses,” we

have held, is among the “minimal due process” protections that defendants must

receive in a revocation proceeding. Frazier, 26 F.3d at 114 (citations omitted).

      Even though the Federal Rules of Evidence are inapplicable in revocation

proceedings, “the admissibility of hearsay is not automatic.” Id. Rather, the

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district court must both ensure that the statement is reliable and “balance the

defendant’s right to confront adverse witnesses against the grounds asserted by the

government for denying confrontation.” Id. (citing United States v. Penn, 721 F.2d

762, 764 (11th Cir. 1983)). The failure to conduct that balancing constitutes a

denial of due process. Id.

      Even if we assume, as we did in Frazier, that the district court violated

Thomas’s due process rights here by failing to perform the requisite balancing, we

must nonetheless affirm if we conclude that its error was harmless. “Any error,

defect, irregularity, or variance that does not affect substantial rights must be

disregarded.” Fed. R. Crim. P. 52(a). To show reversible error, a defendant bears

the heavy burden of showing that “the court explicitly relied on the information” in

reaching its decision. United States v. Taylor, 931 F.2d 842, 847 (11th Cir. 1991).

Doing so requires that the defendant show that the statement is “materially false or

unreliable” and “that it actually served as the basis for the sentence.” Id.

      Thomas has failed to meet that burden here, and we thus hold that the error

was harmless. FM’s short statement that SR told Thomas to stop touching her, to

which Thomas replied “[y]ou know you want it,” is unlikely to have been “the

basis” for the district court’s decision. That is so because three witnesses—

including SR herself—provided both written statements and live testimony to

corroborate the accusations against Thomas. SR testified that Thomas grabbed her


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arm, “put his hand down [her] clothes,” and groped her twice, despite her

protestation. Additionally, SS—who knew Thomas from church and witnessed the

assault—similarly testified that Thomas put his hands “[d]own [SR’s] blouse”

without her consent. She further testified that Thomas tried to go into SR’s

apartment because he was “trying to rape [SR].” RH, moreover, testified that SR

came into her office “wailing” because Thomas “had forcefully put his hand down

[SR’s] shirt.”

      In short, Thomas has failed to show that FM’s out-of-court statement was a

factor, much less the outcome-determinative factor, in the district court’s decision.

See Frazier, 26 F.3d at 114 (finding harmless error “because the properly

considered evidence overwhelmingly demonstrated that [the defendant] breached

the terms of his supervised release”). Because the district court’s error did not

affect Thomas’s substantial rights, we hold that it did not reversibly err by

admitting FM’s statements.

                                          III

      Thomas also argues that insufficient evidence supports the district court’s

decision to revoke his term of supervised release. A district court may do so if it

finds, by a preponderance of the evidence, that the defendant violated a condition

of supervised release. 18 U.S.C. § 3583(e)(3). Our review is highly deferential, as

the district court’s findings of fact are binding unless “clearly erroneous.” United


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States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). Further, we generally will

not question a district court’s assessment of the credibility of witnesses unless a

witness’s testimony is “unbelievable on its face.” United States v. Ramirez-Chilel,

289 F.3d 744, 749 (11th Cir. 2002) (citing United States v. Rivera, 775 F.2d 1559,

1561 (11th Cir. 1985)).

       Here, we cannot say that the district court’s determination that Thomas

sexually assaulted SR is clearly erroneous. As discussed above, the written

statements and live testimony of SR, SS, and RH all support the district court’s

finding that Thomas committed the assault. 2 The district court did not clearly err

in finding that this testimony outweighed that of Thomas’s significant other that

Thomas’s ailments caused him to be so sexually dysfunctional that he has “no need

to stimulate himself.” We therefore reject Thomas’s argument that insufficient

evidence supports the district court’s decision.

                                                IV

       Finally, Thomas argues that his “statutory maximum prison sentence is

substantively unreasonable.” We review substantive reasonableness under the

abuse of discretion standard, Gall v. United States, 552 U.S. 38, 51 (2007), and


2
  It is true, as Thomas highlights in his brief, that both SR and SS occasionally referred to him as
“Arthur,” even though “there is no record of his ever having used the alias or nickname
“Arthur.’” The likelihood of misidentification is low, however, given that SR and SS both
identified Thomas as the culprit in court. Any remaining uncertainty is further dispelled by the
fact that SS knew Thomas from their church. Their testimony was not rendered “unbelievable”
because they referred to Thomas by another name. Ramirez-Chilel, 289 F.3d at 749.
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Thomas bears the burden of showing that his sentence is unreasonable “in light of

the record and the § 3553(a) factors.” United States v. Tome, 611 F.3d 1371, 1378

(11th Cir. 2010).

       We will find an abuse of discretion only if “we are left with the definite and

firm conviction” that the district court “(1) fail[ed] to afford consideration to

relevant factors that were due significant weight, (2) g[ave] significant weight to an

improper or irrelevant factor, or (3) commit[ed] a clear error of judgment in

considering the proper factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th

Cir. 2010) (en banc) (quotations omitted). Under 18 U.S.C. § 3583(e), a district

court may revoke a term of supervised release and impose a term of imprisonment

after considering relevant § 3553(a) factors. 3 We “ordinarily expect[]” within-

guidelines sentences to be reasonable, United States v. Alvarado, 808 F.3d 474,

496 (11th Cir. 2015), and we recognize that the circumstances of each case will

yield a range of reasonable sentences. Irey, 612 F.3d at 1190.

       Thomas argues that his sentence is substantively unreasonable in two

respects. He contends that the district court failed to comply with the parsimony

clause of 18 U.S.C. § 3553(a) because a “24-month prison sentence was greater

than necessary to comply with the purposes of sentencing.” Separately, he argues


3
  District courts need not consider “the kinds of sentences available,” § 3553(a)(3), or the need
for the sentence “to reflect the seriousness of the offense, to promote respect for the law, and to
provide just punishment for the offense,” § 3553(a)(2)(A). § 3583(e).

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that the district court gave undue weight to his criminal history and neglected to

consider his “serious medical conditions that require constant care,” including the

possibility that his dialysis treatments “may have affected his behavior on the day

of the alleged assault.” Neither argument is persuasive.

      Thomas has failed to show that his 24-month, within-guidelines sentence is

outside the acceptable “range of choice[s] for the district court.” Irey, 612 F.3d at

1189. The district court made clear that it made its decision after considering the

fact that Thomas has a “lifetime of criminal history” that includes, among other

crimes, burglary, illegal possession of a firearm, battery, and resisting arrest. This

is permissible, as § 3583(e) provides that district courts may consider, pursuant to

§ 3553(a)(1), “the nature and circumstance[] of the offense and the history and

characteristics of the defendant” in its sentencing calculus. The district court—in

deciding not to vary downward from the statutory maximum—did not abuse its

discretion by instead determining that the seriousness of Thomas’s crime and his

lengthy criminal history should “magnify . . . the punishment to ensue.” Gall, 552

U.S. at 52.

      Thomas’s contention that the district court gave undue weight to his criminal

history and insufficient weight to his medical problems is similarly unpersuasive.

A sentencing court—though it must consider all applicable § 3553(a) factors—is

“permitted to attach ‘great weight’ to one factor over others.” United States v.


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Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). Moreover, we will not presume that

the district court neglected to consider his medical history merely because the

district court did not explicitly respond to his argument at his hearing. “The

district court is not required to state on the record that it has explicitly considered

each of the § 3553(a) factors or to discuss each of the § 3553(a) factors.” United

States v. Sanchez, 586 F.3d 918, 936 (11th Cir. 2009) (quotations omitted).

“At bottom, the sentencing judge need only set forth enough to satisfy the appellate

court that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Chavez-Meza v. United

States, 138 S. Ct. 1959, 1964 (2018) (quotations omitted). The district court did so

here.

        Based on the foregoing, we hold that Thomas’s sentence is substantively

reasonable.

                                                V

        Save for the district court’s imposition of the model search condition, we

affirm Thomas’s sentence. We remand in part to allow the district court to hear

Thomas’s objections on the conditions of his supervised release.

        AFFIRMED IN PART AND REMANDED IN PART.




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