                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4449


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DANIEL BANKS,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.     Frederick P. Stamp,
Jr., Senior District Judge. (5:05-cr-00030-FPS-JSK-1)


Submitted:   September 10, 2013          Decided:   September 17, 2013


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Michael F. Smith, Victoria S. Palmer, THE SMITH APPELLATE LAW
FIRM, Washington, D.C., for Appellant.     William J. Ihlenfeld,
II, United States Attorney, David J. Perri, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Daniel Banks appeals from the judgment of the district

court revoking his term of supervised release and sentencing him

to five months of imprisonment and nineteen months of supervised

release.    Because the district court plainly erred by failing to

comply with Rule 32.1(b)(2)(C) of the Federal Rules of Criminal

Procedure and United States v. Doswell, 670 F.3d 526 (4th Cir.

2012), when it admitted and relied on hearsay evidence at Banks’

revocation hearing, we vacate and remand for further proceedings

consistent with this opinion.

            Banks was convicted of possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)

(2006),     and   was     sentenced    in   2006     to     ninety-two         months’

imprisonment and a two-year term of supervised release.                             Banks

began serving his term of supervised release on May 16, 2012.

In March 2013, Banks’ probation officer filed a petition for a

warrant    and    revocation    against     Banks,    alleging         that     he   had

violated    the   terms    of   his   supervised      release      by        possessing

cocaine and selling the drug on one occasion in November 2012

and   on   another   occasion    in    December      2012   to     a    confidential

informant working for the Martins Ferry, Ohio police department.

            Banks’      revocation    hearing   occurred      in       May    and    June

2013.      Banks denied the violations alleged in the revocation

petition, and a Martins Ferry police officer testified regarding

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the drug purchases forming the basis of the petition.                                     With

respect to the November 2012 purchase, as the officer was about

to    testify      that   the     informant       told    him    the    identity    of     the

person      from    whom     he    purchased        the       drug,    Banks     lodged     an

objection.          After       ascertaining        that      the     officer    felt     the

informant’s statement was reliable, the district court overruled

the objection.            The officer then testified that the informant

stated he had purchased the drug from Banks.                             With respect to

the    December      2012    purchase,    the       officer          testified    that    the

informant stated he had purchased the drug from Banks.                                  Banks

objected, and, after ascertaining that the officer considered

the informant reliable with respect to this transaction, the

district court overruled the objection.

             On cross-examination, the officer testified that the

telephone calls made to the informant to set up the controlled

purchases were not recorded, that no audio or video recordings

of    the    purchases       existed,     that           he    did     not   observe       the

hand-to-hand exchanges of money for drugs and was not present in

the vehicle where the exchanges took place, and that he relied

on the informant’s statements that he purchased the drug from

Banks.      The informant did not appear at the May 2013 hearing,

and neither the officer nor counsel for the Government knew of

his whereabouts.            The revocation hearing resumed in June 2013.

Based on the officer’s hearing testimony, the district court

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revoked    Banks’        supervised           release          and     sentenced        him     to    five

months’ imprisonment and nineteen months of supervised release.

              On    appeal,           Banks       argues         that       the    district          court

improperly relied on evidence admitted in violation of Fed. R.

Crim. P. 32.1(b)(2)(C) (providing that a releasee “is entitled

to . . . question               any     adverse            witness          unless        the        court

determines that the interest of justice does not require the

witness to appear”) and Doswell, 670 F.3d at 530-31 (holding

that    the    rule        requires          a      district          court       to    balance        the

releasee’s interest in confronting an adverse witness against

any    proffered         good    cause        for      denying         confrontation           prior    to

admitting      hearsay           evidence             in    a     revocation            hearing        and

emphasizing        that     reliability               is   a     “critical         factor”      in     the

balancing          test)         in         revoking            his      supervised            release.

Specifically,        Banks       argues          that      the    district         court       erred    by

failing to balance his interest in confronting the informant

against    the      interest           of    justice           and     by    not       assessing       the

reliability         of     the        informant’s           statements            to    the     officer

regarding the controlled purchases.

              We ordinarily review a district court’s decision to

admit     evidence        for     abuse          of       discretion,         United       States      v.

Medford,      661    F.3d        746,       751     (4th        Cir.    2011),         cert.    denied,

132 S. Ct. 1729 (2012), and this standard also applies to the

district      court’s       admission             of       hearsay       evidence        under        Rule

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32.1(b)(2)(C).         Doswell, 670 F.3d at 529.             However, after review

of   the   record      and     the    parties’     briefs,    we   agree      with   the

Government that our review is for plain error only.                           Although

Banks objected to the admission of the informant’s statements

identifying him as the seller, his objections were not based on

his inability to question the informant or the court’s alleged

failure     to    comply     with     Rule       32.1(b)(2)(C)     or   the    Doswell

decision.        As Banks’ objections were not “sufficiently specific

to bring into focus the precise nature” of the errors he alleges

on appeal, id. at 530 (internal quotation marks omitted), our

review is for plain error.                   To prevail under this standard,

Banks must show that an error was made, is plain, and affected

his substantial rights.              Henderson v. United States, 133 S. Ct.

1121, 1126 (2013).           Moreover, the correction of plain error lies

within our discretion, which we do not exercise unless the error

“seriously affects the fairness, integrity or public reputation

of judicial proceedings.”             Id. at 1127 (internal quotation marks

and alteration omitted).

            “Supervised release revocation hearings are informal

proceedings       in   which    the    rules      of   evidence,   including     those

pertaining to hearsay, need not be strictly applied.”                         Doswell,

670 F.3d at 530.             However, due process affords a releasee a

limited right “to confront and cross-examine adverse witnesses”

at a revocation hearing “unless the hearing officer specifically

                                             5
finds good cause for not allowing confrontation.”                               Morrissey v.

Brewer, 408 U.S. 471, 489 (1972).                      Prior to admitting hearsay

evidence   in    a   revocation         hearing,        “the    district         court     must

balance    the   releasee’s           interest       in     confronting          an     adverse

witness    against    any       proffered        good      cause     for     denying       such

confrontation.”       Doswell, 670 F.3d at 530.                     Reliability of the

hearsay evidence is a “critical factor” in this balancing test.

Id. at 531.      Further, the due process guarantee is embodied in

the    procedural         rule        that       a         releasee        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).

            Here, the informant did not appear or testify at the

revocation    hearing.          The    Government          neither     put      forward       any

explanation for the informant’s failure to appear nor proffered

its lack of knowledge of the informant’s whereabouts as cause

for   denying    Banks’     right      to    confrontation,           and    there       is    no

indication    from   the    record       that        the    district       court       balanced

Banks’ confrontation right against any good cause for denying

confrontation.       Further, the informant’s statement was the sole

evidence admitted at the revocation hearing connecting Banks to

the violations alleged in the revocation petition.                              Although the

district court ascertained the testifying officer’s assessments

of the reliability of the informant’s statements, the court did

                                             6
not adopt those assessments as its own or otherwise conduct on

the   record      its    own     assessment         of     the    reliability        of   the

informant’s statements.              In admitting the informant’s statements

without a reliability assessment or any attempt to engage in the

balancing      required    by     Rule   32.1,           the    district    court     erred.

Doswell, 670 F.3d at 531.

            Turning to the next step of our analysis, we conclude

that the error—which occurred in 2013, well over a year after

the issuance of the opinion in Doswell—was plain.                                 See United

States v. Carthorne, ___ F.3d ___, No. 11–4870, 2013 WL 4056052,

at *9 (4th Cir. Aug. 13, 2013) (noting that “[t]he term plain

error is synonymous with clear or obvious error” and that an

error qualifies as “plain if the settled law of the Supreme

Court or this circuit establishes that an error has occurred”

(internal quotation marks omitted)).                       We further conclude that

the   error     affected        Banks’    substantial             rights     because      the

district       court’s     revocation             decision       was     based      on    the

determination that the cocaine sales alleged in the revocation

petition    had     been       established         by     the    officer’s        testimony.

See United States v. Greene, 704 F.3d 298, 312 (4th Cir. 2013)

(noting that the phrase “affecting substantial rights in most

cases means that the error was prejudicial” (internal quotation

marks, alteration, and ellipsis omitted)), petition for cert.

filed,   ___    U.S.L.W.       ___    (U.S.       Apr.    29,    2013)     (No.    12-9965);

                                              7
United States       v.    Basham,     561    F.3d   302,   334   (4th   Cir.    2009)

(recognizing that an error prejudices substantial rights when it

affects the outcome of the hearing at issue).

               Finally, we conclude that the district court’s plain

error is one we should notice because a failure to correct the

error would seriously affect the integrity or public reputation

of the judiciary.          Viewing the record as a whole, the revocation

proceedings did not result in a fair and reliable determination

that Banks had violated the terms of his supervised release.

Accordingly, we exercise our discretion to notice the error.

Accord United States v. Cedelle, 89 F.3d 181, 185-86 (4th Cir.

1996) (stating that this court is to view a district court’s

plain error “against the entire record” in determining whether

the circumstances present an appropriate occasion to notice the

error and declining to correct the district court’s plain error

in failing to instruct the jury because review of the entire

record   revealed        that   the   proceedings     resulted     in   a   fair    and

reliable       determination        of   guilt      (internal     quotation     marks

omitted)).

               We   therefore     vacate     the    district     court’s     judgment

revoking Banks’ supervised release and remand this case to the

district court for further proceedings.                    We deny Banks’ motion

to expedite decision and dispense with oral argument because the

facts    and    legal    contentions        are   adequately     presented     in   the

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materials   before   this   court   and   argument   would   not   aid   the

decisional process.

                                                     VACATED AND REMANDED




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