           Case: 13-10771   Date Filed: 12/23/2013   Page: 1 of 8


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-10771
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 5:05-cr-00134-SLB-RRA-9



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                 versus

PAUL RAY HINES,

                                                         Defendant-Appellant.

                      ________________________

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

                            (December 23, 2013)

Before PRYOR, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:
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      Paul Ray Hines appeals the district court’s revocation of his supervised

release and imposition of an above-Guidelines 60-month sentence. While on

supervised release, Hines was arrested in Tennessee for possession of cocaine with

the intent to manufacture, sell, or deliver. At the revocation hearing, the district

court admitted, over Hines’ objection, an audio recording of an interview between

Hines’ probation officer, Matthew Worboys, and Detective Nemic, an officer who

had knowledge of Hines’ arrest. The district court also admitted into evidence,

without an objection, Government’s Exhibit 2, which was: (1) an arrest affidavit

signed by Officer Hardison, the officer who transported Hines after his arrest; (2) a

vehicle search consent form signed by Hines; (3) an evidence report; and (4) a field

test report. Based on the evidence, the district court concluded that Hines had

violated the conditions of his supervised release that ordered him (1) not to commit

another federal, state, or local crime, and not to illegally possess a controlled

substance, and (2) not to leave the Northern District of Alabama without

permission.

      On appeal, Hines argues the district court abused its discretion by admitting

the hearsay audio recording without first balancing Hines’ right to confront the

adverse witness against the Government’s proffered reasons for not providing the

opportunity for cross-examination. He also contends his 60-month sentence is




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substantively unreasonable. After review, we affirm Hines’ revocation of

supervised release and subsequently imposed sentence.

                             Revocation of Supervised Release

       We review a district court’s revocation of supervised release for abuse of

discretion, United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir.

2008), and a district court’s findings of fact for clear error. United States v.

Almand, 992 F.2d 316, 318 (11th Cir. 1993).

      A district court may “revoke a term of supervised release, and require the

defendant to serve in prison all or part of the term of supervised release” if the

court “finds by a preponderance of the evidence that the defendant violated a

condition of supervised release.” 18 U.S.C. § 3583(e)(3). However, the “full

panoply of rights due a defendant” at trial do not apply in a supervised release

revocation hearing. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (discussing

a revocation of parole); see also United States v. Copeland, 20 F.3d 412, 414 (11th

Cir. 1994) (applying Morrissey to a revocation of supervised release). Rather, a

defendant in a supervised release revocation proceeding is entitled to only the

minimum requirements of due process, including “the right to confront and cross-

examine adverse witnesses (unless the hearing officer specifically finds good cause

for not allowing confrontation).” Morrissey, 408 U.S. at 489. In accordance with

this standard, Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides that a


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defendant is entitled to an opportunity to question an adverse witness in a

revocation hearing unless the court determines the interest of justice does not

require the witness to appear. Fed. R. Crim. P. 32.1(b)(2)(C). The revocation

procedure should be informal and flexible enough for the court “to consider

evidence including letters, affidavits, and other material that would not be

admissible in an adversary criminal trial.” Morrissey, 408 U.S. at 489; see also

Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973) (“While in some cases there is

simply no adequate alternative to live testimony . . . Morrissey [did not] intend to

prohibit use where appropriate of the conventional substitutes for live testimony,

including affidavits, depositions, and documentary evidence.”).

      In addition, the Federal Rules of Evidence do not apply in the context of a

supervised release revocation hearing. United States v. Frazier, 26 F.3d 110, 114

(11th Cir. 1994). However, hearsay statements must be reliable in order to be

admitted. Id. In deciding whether to admit the hearsay testimony of an absent

witness, the district court must: (1) make findings that the hearsay was reliable and

(2) “balance the defendant’s right to confront adverse witnesses against the

grounds asserted by the government for denying confrontation.” Id. The failure to

make specific findings of reliability or to conduct the balancing test is error. Id.

However, the error is harmless if the properly considered evidence was sufficient

to support the court’s conclusion. Id.


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       We review the district court’s admission of the audio recording of the

interview for abuse of discretion because Hines objected during the revocation

hearing. See Velasquez Velasquez, 524 F.3d at 1252 (“We generally review a

district court's revocation of supervised release for an abuse of discretion.”). We

review Hines’s objection to Government’s Exhibit 2 for plain error because Hines

failed to object during the revocation proceeding. See United States v. Turner, 474

F.3d 1265, 1275 (11th Cir. 2007) (stating that plain error review is appropriate

where a defendant fails to preserve an evidentiary ruling through contemporaneous

objection).

       As to the audio recording, the district court abused its discretion by

admitting this evidence without first engaging in the Frazier balancing test. See

Frazier, 26 F.3d at 114. In response to Hines’ objection that the audio recording

was hearsay, the district court overruled the objection and stated that Hines had an

“uphill battle” to demonstrate to the district court that he did not possess $4,000 or

$5,000 worth of cocaine. When Hines renewed his objection to the audio

recording, the district court summarily overruled it without explanation. Nothing in

the record indicates the district court engaged in a balancing test whereby it

considered Hines’ right to confront adverse witnesses against the Government’s

proffered reasons for not having the witness testify in court. See Frazier, 26 F.3d at

114.


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      However, remand is not required because this error was harmless given that

the other evidence in the record supports the district court’s finding that Hines

possessed cocaine. See Frazier, 26 F.3d at 114. Hines has not established the

district court plainly erred by admitting Government’s Exhibit 2. The district court

implicitly determined the arrest affidavit was reliable by noting that (1) the arrest

affidavit was written by Officer Hardison, who transported Hines the day of the

arrest; (2) Officer Hardison had presumably spoken with Detectives Vrooman and

Dotson that day; and (3) Officer Hardison had signed the affidavit on the day of the

arrest. Hines’ argument the arrest affidavit is not reliable because Officer Hardison

was not there for the arrest is unavailing because Hines is essentially arguing the

affidavit is unreliable solely because it is hearsay. Hines’ similar arguments

regarding the reliability of the vehicle consent search form and evidence report are

also meritless because he challenges them for lack of authentication, but

supervised release revocation hearings are informal and the Federal Rules of

Evidence do not apply. See Frazier, 26 F.3d at 114. Moreover, Hines does not

dispute cocaine was found in the vehicle he owned and was a passenger of at the

time of the search. “[T]here is no requirement . . . to prove beyond a reasonable

doubt that the defendant committed the alleged acts. All that is required is that the

evidence reasonably satisfy the judge that the conduct of the [releasee] has not

been as good as required by the conditions of probation.” United States v. Taylor,


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931 F.2d 842, 848 (11th Cir. 1991) (citations omitted) (internal quotation marks

omitted).

       The evidence was sufficient to meet the Government’s burden of reasonably

satisfying the district court that Hines violated a condition of his supervised release

by possessing cocaine. Thus, the decision to revoke Hines’ supervised release is

affirmed. 1

                                            Sentence

       We now turn to Hines’ argument that his 60-month sentence was

substantively unreasonable. We review the sentence imposed following the

revocation of supervised release for reasonableness. Velasquez Velasquez, 524

F.3d at 1252. When reviewing a sentence for substantive reasonability, a sentence

is substantively unreasonable if, considering the totality of the circumstances, the

court weighed the 18 U.S.C. § 3553(a) factors unreasonably and imposed a

sentence that did not achieve the purposes of sentencing outlined in § 3553(a).

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). The party

challenging the sentence bears the burden of proving the sentence enforced was

unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

       1
         Hines’ suggestion that the district court’s refusal to grant a continuance resulted in harm
is unfounded. Hines “made no showing that by granting a continuance any substantial favorable
evidence would be tendered by a witness, that a witness was available and willing to testify, and
that the denial of the continuance would materially prejudice the defendant.” United States v.
Taylor, 931 F.2d 842, 848 (citations omitted) (internal quotation marks omitted). Without
making that specific and overt showing, the district court did not abuse its discretion by denying
a continuance.
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      While Hines’ Sentencing Guidelines range was 37-46 months’

imprisonment, the statutorily allowed maximum was 60-months’ imprisonment

because the imposition of Hines supervised release stemmed from a Class A

felony. See 18 U.S.C. § 3583(b)(1), (e)(3). The district court explicitly stated it

considered Hines’ repeated brushes with the law and felt it necessary to protect the

public from future criminal activity. While the district court did not go through all

of the § 3553(a) factors individually, it is under no requirement to do so. See id. at

786. Further, the district court, despite Hines’ contention to the contrary, openly

considered his weakened physical health but still felt the need to protect the public

outweighed any of his medical concerns. Therefore, the district court’s sentence

was reasonable. Hines sentence is affirmed.

      AFFIRMED.




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