                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0283n.06

                                            No. 09-6361                                  FILED
                                                                                     May 11, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                      ON APPEAL FROM THE
v.                                                    UNITED STATES DISTRICT
                                                      COURT FOR THE EASTERN
ANTONIO CHAMES,                                       DISTRICT OF KENTUCKY

            Defendant-Appellant.
________________________________/

BEFORE: MARTIN, SUHRHEINRICH, and WHITE, Circuit Judges.

       PER CURIAM. Defendant Antonio Chames appeals the judgment revoking his term of

supervised release and sentencing him to ten months’ incarceration. We AFFIRM.

                                          I. Background

       On July 30, 2004, Chames was sentenced to fifty-one months of imprisonment followed by

a three-year term of supervised release after pleading guilty to distribution of crack cocaine, in

violation of 21 U.S.C. § 841(a)(1). The term of supervised release included substance abuse

aftercare, a special search condition, a condition to obtain his GED, and a $100.00 special

assessment.

       On January 4, 2008, Chames began his supervised release, but was arrested the next day for

disorderly conduct, fleeing and evading, and resisting arrest. As a result, the district court revoked

his supervised release and ordered Chames to serve 120 days at the Talbert Halfway House to be

followed by twenty months of supervised release. Chames reported to Talbert House on February
1, 2008. However, he was terminated on February 26, 2008, for violating the program. His

violations included “an extreme degree of resistence [sic] to various case managers, failing to attend

corrective thinking classes, failing to make progress with locating employment, failing to provide

verification of his status while not at Talbert House and being argumentative with Talbert House

staff.” The district court revoked his supervised release and sentenced him to four months’

imprisonment to be followed by twenty months of supervision.

       On August 30, 2008, after being released from prison, Chames was arrested for disorderly

conduct. The charge was later dismissed and the district court took no action.

       On March 5, 2009, Chames tested positive for using marijuana. On April 27, 2009, at a

supervised release violation hearing, Chames admitted the violation and waived his right of

allocution. On April 28, 2009, the district court found that Chames had violated the terms of his

supervised release, and by agreement of the parties, modified Chames’s supervision. Specifically,

the court ordered Chames to the custody of Dismas House in Lexington, Kentucky, for six months.

The district court further ordered that if Chames “fails to successfully complete the treatment

program at Dismas House or is otherwise terminated, he be sentenced to ten (10) months

incarceration.”

       Chames arrived at Dismas House on June 22, 2009. He was terminated the following day

for threatening behavior. Chames was taken into custody on June 25, 2009. Chames was deemed

indigent and counsel was appointed. On July 8, 2009, the magistrate judge held an evidentiary

hearing on the United States Probation Office’s motion to show cause why Chames’s supervised

release should not be revoked.




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       Sheryl Fisher, the Director of Dismas House, testified on behalf of the Government. Fisher

stated that she terminated Chames because he displayed threatening behavior towards her during an

employment skills meeting that she conducted on June 23, 2009. Fisher explained that new residents

are provided with a list of rules and can be terminated for various reasons, including disruptive

behavior. She said that, the week before Chames arrived, she had implemented a new rule relating

accountability for job searches. Under the new rule, residents were only permitted to visit employers

that the House had verified were hiring. Fisher addressed the employment skills group because many

of the residents were not happy about the rule change. Fisher testified that, after she explained the

new rule to the group, Chames and another resident said it was not fair. Chames repeatedly

interrupted her and she told him, “[y]ou have two choices. You can do what I tell you to do, or you

can pack your stuff and you can leave.” Fisher testified that Chames had been standing up, and that

as she left, Chames “was calling after me and ran after me, or came toward me. I don’t know if he

ran. . . . All I know is I turned and he was right there.” She said that she felt threatened by his

behavior, and she added that she was “not used to any resident approaching me in such a swift and

hyped-up manner.” Fisher then told him to pack his belongings and leave. She explained that he

was not swearing or yelling, but that his voice was aggressive.

       Chames also testified, denying that he had acted improperly. Chames stated that he had been

through the orientation process and knew that he could be terminated for disruptive behavior. He

stated that he knew about the rule change. When Fisher asked for comments, he raised his hand.

Chames testified that he told Fisher that, just because a job was not posted, it “doesn’t necessarily

mean that if I was to go to that job and put in an application and present myself properly, that they

won’t necessarily hire me.” Chames then told Fisher that “you’re punishing everybody else for


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something that other people are doing.” Chames claimed that she terminated him at this point,

turned around and walked out, and he approached her at that time.

       The magistrate judge credited Fisher. Accordingly, the magistrate judge found that Chames

had violated the terms of his supervised release and recommended that Chames be sentenced to ten

months’ imprisonment with no supervised release to follow.

       Chames filed objections. He relied on “new evidence”–a copy of the security video tape of

the employment skills meeting at the Dismas House that had not been presented to the magistrate

judge– which he claimed contradicted Fisher’s testimony and demonstrated that his termination was

unjustified.

       The district court reviewed the video and found Fisher to be credible.1 The district court

found that Chames’s behavior was a sufficient reason for his termination and that Chames had not

successfully completed the treatment program. The district court also noted that Chames had been

given several opportunities to comply with supervised release conditions and had failed every time.

The court held that “[Chames’s] continued non-compliance with release conditions, as testified to

by Ms. Fisher, compell[ed] the Court to conclude that his supervised release should be revoked, and

no further supervised release be imposed.” The district court therefore adopted the magistrate

judge’s recommendations, found that Chames had violated the terms of his supervised release, and

sentenced Chames to ten months’ imprisonment with no supervised release to follow.

       On appeal, Chames argues that the Government failed to prove by a preponderance of the

evidence that he violated the conditions of his supervised release because the security video



       1
        The district court noted that the CD did not contain the audio portion of the meeting. This
Court likewise lacks the audio portion of the meeting.

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discounts Fisher’s version of events. Second, Chames contends the district court violated his Fifth

Amendment due process rights by considering his prior violations when determining whether he

violated his conditions of release at Dismas House.

                                            II. Analysis

         This court reviews a district court’s decision to revoke supervised release for abuse of

discretion, “giving fresh review to its legal conclusions and clear-error review to its fact findings.”

United States v. Kontrol, 554 F.3d 1089, 1091-92 (6th Cir. 2009) (internal citations omitted).

         As noted, Chames challenges the district court’s revocation of his supervised release. As an

initial matter, we hold that this argument is waived. We have stated on more than one occasion that

a party “cannot agree in open court with a judge’s proposed course of conduct and then charge the

court with error in following that course.” United States v. Aparco-Centeno, 280 F.3d 1084, 1088

(6th Cir. 2002) (quoting United States v. Sloman, 909 F.2d 176, 182 (6th Cir. 1990) (internal

quotation marks omitted)). See also United States v. Olano, 507 U.S. 725, 732-33 (1993) (stating

that waiver is the “intentional relinquishment or abandonment of a known right,” and renders such

rights unreviewable). Chames agreed at the April 28, 2009 revocation hearing that, if he failed to

successfully complete the treatment program at Dismas House, he would be sentenced to ten months’

imprisonment. And Chames acknowledged this at the evidentiary hearing before the magistrate

judge.

         Having said that, we will review for plain error “when the interests of justice demand

otherwise.” Aparco-Centeno, 280 F.3d at 1088. Such is not the case here, notwithstanding

Chames’s unsupported assertion that it was implicit that any termination would be with just cause.




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       Chames claims that the security video contradicts Fisher’s testimony and establishes there

was no just cause for his termination. Specifically, he says the video reflects that he did not stand

up at any time during the meeting while Fisher was in the room and that he did not approach her in

a “swift and hyped-up manner,” as she claims in her testimony.

       Chames’s claim is without merit. Fisher’s description of Chames’s behavior is consistent

with the video recording. Fisher stated that Chames did not attempt to grab her and yelled after her.

While it appears from the video that Chames did not actually stand up until Fisher turned to leave,

it does not matter. Even if Fisher’s recall of this fact is incorrect, the video shows that Chames

challenged her during the meeting and stood and followed her as she turned to leave, while the others

remain seated. Chames’s allegation that Fisher was “in an admitted bad mood” is not supported by

the record. In short, the Government met its burden through Fisher’s testimony, and the transcript

and video recording easily support the district court’s determination to credit Fisher’s version of

events over Chames’s.

       Chames further complains that his due process rights were violated because the district court

considered his prior violations in determining whether he violated the conditions of his supervised

release. The district court’s consideration of this evidence was not improper. The Federal Rules of

Evidence do not apply to supervised release revocation hearings. See Fed. R. Evid. 1101(d)(3)

(stating that the Rules do not apply to “proceedings . . . [for] granting or revoking probation”);

United States v. Frazier, 26 F.3d 110, 113 (11th Cir. 1994) (holding that by analogy Rules do not

apply to supervised release revocation proceedings); see also U.S.S.G. § 6A1.3(a) (providing that

a sentencing court “may consider relevant information without regard to its admissibility under the

rules of evidence applicable at trial”); 18 U.S.C. § 3661 (stating that “[n]o limitation shall be placed


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on the information concerning the background, character, and conduct of a person convicted of an

offense which a court of the Untied States may receive and consider for the purpose of imposing an

appropriate sentence.”). In any event, Chames denied that he was disruptive or threatening. Thus,

evidence of Chames’s prior violations was properly used to attack his credibility. See, e.g., United

States v. Markarian, 967 F.2d 1098, 1103 (6th Cir. 1992) (“We have repeatedly insisted that when

defendants testify, they must testify truthfully or suffer the consequences . . . . It is essential,

therefore, to the proper functioning of the adversary system that when a defendant takes the stand,

the government be permitted proper and effective cross-examination in an attempt to elicit the

truth.”) (internal quotation marks and citation omitted).

       Finally, Chames’s contention that the district court violated his due process rights because

it did not give him an additional hearing on his objections to the magistrate judge’s report is also

without merit because the district court did what Chames asked it to do–review the video recording.

                                         III. Conclusion

       In sum, this appeal is entirely without merit. The judgment of the district court is

AFFIRMED for the reasons stated herein, as well as the thorough opinions of the district court and

the magistrate judge.




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