                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                February 3, 2017
                                     PUBLISH                  Elisabeth A. Shumaker
                                                                  Clerk of Court
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.
                                                        No. 15-6181
 TREMALE ODALE HENRY,

          Defendant - Appellant.




                                      ORDER


Before PHILLIPS and BALDOCK, Circuit Judges. *


      This matter is before us on the Petition for Panel Rehearing filed by the

appellee. We also have a response from the appellant. Upon careful consideration


      *
        The Honorable Neil Gorsuch considered this appeal originally and
authored our opinion issued October 25, 2016. Judge Gorsuch did not, however,
participate in the issuance of this order on the appellee’s petition for panel
rehearing. The practice of this court permits the remaining two panel judges, if in
agreement, to act as a quorum in resolving the appellee’s petition for panel
rehearing. See 28 U.S.C. § 46(d); see also United States v. Wiles, 106 F.3d 1516,
1516, n* (10th Cir. 1997) (noting this court allows remaining panel judges to act
as a quorum to resolve an appeal); Murray v. National Broadcasting Co., 35 F.3d
45, 48 (2nd Cir. 1994), cert. denied, 513 U.S. 1082 (1995) (remaining two judges
of original three judge panel may decide petition for rehearing without third
judge).
of the petition and the response, the appellee’s request for panel rehearing is

granted, but solely for the purposes of adding the following footnote to the last

sentence of the opinion issued on October 25, 2016.

      In a petition for panel rehearing filed after we issued our decision, the
      government attempts yet another harmless error argument. Here the
      government accepts that the district court erred in finding a second
      independent probation violation at the (so-called) “guilt” phase of the
      revocation proceedings without first engaging the Jones test. But it claims
      this error was harmless because the district court would have been free
      under United States v. Ruby, 706 F.3d 1221, 1226 (10th Cir. 2013), to
      consider hearsay evidence about any “bad acts” of any sort at the
      “sentencing” phase of its revocation proceedings without addressing the
      Jones test. However that may be, though, this particular argument never
      found its way to us until the petition for panel rehearing so it has been
      forfeited. United States v. Charley, 189 F.3d 1251, 1264 n.16 (10th Cir.
      1999)). Further and even on its own terms, the argument doesn’t quite
      satisfy. For even if the district court could have considered hearsay
      evidence about the second assault at the “sentencing phase” without first
      engaging the Jones test, that’s not what happened here. The district court
      used the second assault to find a second independent supervised release
      violation at the “guilt” phase of the revocation proceedings. And short of
      speculation we just cannot be sure what impact the district court’s finding
      of a second and independent probation violation at the “guilt” phase had on
      its “sentencing” decision. Maybe in the district judge’s mind nothing
      turned on whether the evidence surrounding the assault formally amounted
      to a second, independent violation instead of just more “bad acts”; but
      maybe it did. After all, district courts not infrequently cite the existence of
      multiple, independent supervised release violations (not just the “bad acts”
      underlying them) as factors influencing their sentencing decisions. See,
      e.g., United States v. Fulton, 567 F. App’x 668, 673 (10th Cir. 2014);
      United States v. Keller, 372 F. App’x 883, 889 (10th Cir. 2010); United
      States v. Hooks, 368 F. App’x 885, 888 (10th Cir. 2010). Neither is
      harmless error doctrine license for rank speculation. When it comes to the
      loss of liberty, it is better to know on remand than guess on appeal.




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      The Clerk of Court is directed to (1) add the foregoing footnote to the end

of the last sentence of our October 25, 2016 opinion; and (2) reissue that opinion

as of the date of this order.
                                          Entered for the Court




                                          ELISABETH A. SHUMAKER, Clerk




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