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                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-17766
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 9:13-cr-80098-DTKH-3



UNITED STATES OF AMERICA,

                                                     Plaintiff - Appellee,

                                  versus

CHRISTOPHER RONALD AIME,

                                                     Defendant - Appellant.

                      ________________________

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

                             (July 25, 2017)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Christopher Ronald Aime appeals the sentence imposed after he violated the

conditions of his supervised release. In this appeal, Aime argues that the district

court denied him due process and Sixth Amendment confrontation rights by

sentencing him based on conduct related to a charge that the government declined

to pursue. After careful review, and for the reasons below, we affirm.

                                I.     BACKGROUND

      Aime pled guilty to conspiracy to transport stolen motor vehicles in

interstate and foreign commerce, in violation of 18 U.S.C. §§ 371 and 2312. Aime

completed his sentence of imprisonment in May 2016 and began a three-year term

of supervised release. As relevant here, his supervised release was conditioned on

his refraining from violating the law; securing permission of his probation officer

before leaving the judicial district; notifying his probation officer within 72 hours

of being arrested or questioned by law enforcement; and answering truthfully all

inquiries by the probation officer. One month into his supervised release, Aime

was arrested outside of his judicial district at an auto mall. He had tools and latex

gloves in his possession.

      Aime’s probation officer petitioned the district court for revocation of

Aime’s supervised release, alleging that Aime had committed two violations of the

terms of his supervised release: violating Florida law by giving an officer a false


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name, loitering and prowling, and driving on a suspended license (“violation 1”);

and leaving the judicial district without permission from his probation officer

(“violation 2”).

      A magistrate judge conducted a revocation hearing at which Aime admitted

to violation 2 in whole and to violation 1 only in so far as he failed to refrain from

violating the law by giving a police officer a false name and driving on a

suspended license. Aime did not admit to loitering and prowling, but conceded

that he was arrested for that charge. Although the government prepared to present

evidence on the loitering and prowling charge, it did not pursue the charge because

Aime’s admission to the other two charges within violation 1 sufficed to adjudicate

him in violation of his supervised release. Aime understood that the charges he

admitted constituted a violation of his conditions. The magistrate judge

recommended that his supervised release be revoked. The district court issued an

order following this recommendation and adjudicated Aime in violation of the

terms of his supervised release.

      Before his sentencing hearing for violations 1 and 2, Aime’s probation

officer filed a superseding petition alleging that Aime had committed three

additional violations of his supervised release, including: leaving the judicial

district without permission from his probation officer (“violation 3”); failing to

notify the probation officer within 72 hours of being questioned by law


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enforcement (“violation 4”); and failing to answer truthfully all inquiries by the

probation officer (“violation 5”). Aime denied the additional violations. The

district court held a joint revocation and sentencing hearing. The hearing began as

a revocation hearing, at which the government presented evidence on violations 3,

4, and 5. The court determined, based on a preponderance of the evidence, that

Aime committed the additional violations and adjudged him again in violation of

the conditions of his supervised release.

      The district court then closed the revocation hearing and “moved into the

sentencing part of the proceeding.” Evidentiary Hrg. Trans., Doc. 144 at 55. 1 At

sentencing, the government requested that Aime receive the statutory maximum

sentence of two years’ imprisonment. In making this request, the government

relied on the facts pertaining to violation 1—that is, Aime’s arrest in an auto mall

car lot while in possession of tools and latex gloves. Aime objected to the

government’s use of these facts, asserting that the government had abandoned

reliance on them in the initial revocation hearing. He argued that the facts of his

location in a car lot and the items in his possession were directly related to the

loitering and prowling charge the government declined to prove with evidence or

witnesses.




      1
          Citations to “Doc.” refer to docket entries in the district court record in this case.
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      The government then requested an opportunity to present the evidence to the

court regarding the facts and circumstances of Aime’s arrest. The district court

noted that those facts were not in evidence and, over Aime’s objection, permitted

the government to present evidence of the location of his arrest and the items in his

possession. Although the district court characterized its acceptance of evidence as

a “reopening” of the hearing, it clarified: “This is not a probation violation

hearing. We have already had the hearing. This is a sentencing.” Evidentiary

Hrg. Trans., Doc. 144 at 79. After hearing the evidence, the district court turned

to the factors in 18 U.S.C. § 3553(a) and considered the circumstances of Aime’s

violations, his history and characteristics, and the concept of general deterrence.

The district court noted that although Aime’s violations were technical, the

circumstances of those violations indicated that he was preparing to steal a car,

which was the conduct of his original conviction. Based on these considerations,

the court sentenced him to15 months’ imprisonment with 15 months’ supervised

release to follow.

                                 II.    DISCUSSION

      On appeal, Aime argues he was denied due process and his Sixth

Amendment right to confront witnesses because the government abandoned the

loitering and prowling charge and then relied on the facts of that charge when

arguing for revocation of his supervised release. Essentially, Aime argues that the


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government made a bait and switch by initially abandoning the charge and then

convincing the district court to reopen evidence and consider the facts of Aime’s

arrest on that charge without giving him the chance to confront witnesses against

him. For the following reasons, we affirm the district court’s sentence.

      We review de novo challenges to the constitutionality of a defendant’s

sentence. United States v. Ghertler, 605 F.3d 1256, 1268 (11th Cir. 2010).

Although the Federal Rules of Evidence do not apply at a supervised release

revocation hearing, a defendant is entitled to minimal due process protections such

as the right to confront witnesses. United States v. Frazier, 26 F.3d 110, 114 (11th

Cir. 1994). A district court may revoke a term of supervised release and require a

defendant serve a term of imprisonment if the court finds, based on a

preponderance of the evidence, that the defendant violated the conditions of his

supervised release. 18 U.S.C. § 3583(e).

      The district court did not deny Aime his right to confront witnesses because

Aime received that opportunity at the revocation hearing. After both revocation

hearings, Aime was found in violation of the terms of his supervised release. Aime

admitted to violations 1 and 2, and the district court found that he committed

violations 3, 4, and 5 based on a preponderance of the evidence. Although Aime

did not admit to the loitering and prowling charge, he understood that the other two

charges in violation sufficed to adjudicate him in violation of his supervised


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release. After finding Aime in violation of his supervised release, the district court

moved into a sentencing hearing. Aime argues that the district court erred by

reopening the revocation hearing during the sentencing hearing to allow the

government to present evidence on his loitering and prowling charge without

affording Aime the opportunity to confront witnesses. The district court was clear,

however, that it had moved from the revocation proceedings to the sentencing

proceedings.

      The evidentiary rules at sentencing are different than those of other

proceedings, United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005), and the

district court followed the proper sentencing rules in Aime’s proceedings. The

right to confrontation is not available at sentencing. United States v. Cantellano,

430 F.3d 1142, 1146 (11th Cir. 2005). When determining an appropriate sentence,

the district court considers the factors enumerated in § 3553(a), including the

nature and circumstances of the offense, the history and characteristics of the

defendant, and the need to deter criminal conduct. See 18 U.S.C. § 3553(a).

Sentencing courts may consider both uncharged and acquitted conduct at

sentencing. United States v. Smith, 741 F.3d 1211, 1227 (11th Cir. 2013) (internal

quotation marks omitted).

      We reject Aime’s assertion of a bait and switch by the government. The

rules simply changed from the revocation hearing to the sentencing hearing. Aime


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maintains his right to due process during sentencing, but he does not maintain his

right to confront witnesses. Aime had been adjudicated in violation of his

conditions of supervised release at the revocation hearing; thus, the evidence of the

circumstances surrounding Aime’s arrest presented at sentencing was only for the

purpose of considering an appropriate sentence based on the prepatory nature of

his violations. Because the district court did not deny Aime his due process or

confrontation rights by relying on the facts of his arrest when fashioning a

sentence, we affirm.

                                III.   CONCLUSION

      For the foregoing reasons, we affirm the district court’s imposition of a 15-

month sentence followed by a 15-month term of supervised release.

      AFFIRMED.




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