             Case: 14-10257      Date Filed: 01/05/2015   Page: 1 of 4


                                                                          [PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 14-10257
                              Non-Argument Calendar
                            ________________________

                 D.C. Docket No. 5:02-cr-00010-WTM-JEG-4



UNITED STATES OF AMERICA,

                                                                    Plaintiff-Appellee,

                                        versus

MARVIN REESE,
a.k.a. Big Marvin,

                                                              Defendant-Appellant.

                            ________________________

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

                                  (January 5, 2015)

Before ED CARNES, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 14-10257     Date Filed: 01/05/2015     Page: 2 of 4


      The district court revoked Marvin Reese’s supervised release and sentenced

him to 46 months imprisonment because it found that he had committed a new

felony controlled substance offense, had possessed a controlled substance, and had

used a controlled substance. Reese appeals the district court’s judgment.

      Reese first contends that, during the hearing to revoke his supervised release,

his Sixth Amendment rights were violated because the results of the laboratory test

confirming that one of the substances in question was illegal drugs were admitted

through the testimony of a police officer instead of the lab technician who

performed the test. See U.S. Const. Amend. VI; Melendez-Diaz v. Massachusetts,

557 U.S. 305, 311, 129 S.Ct. 2527, 2532 (2009). Because Reese did not raise this

claim before the district court, we review it only for plain error. See United States

v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). We will reverse a judgment for

plain error only if three elements are met: (1) the district court committed a legal

error; (2) that error was plain; and (3) it affected the appellant’s substantial rights.

United States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998); see also United States

v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012) (“For a plain error to have

occurred, the error must be one that is obvious and is clear under current law.”)

(quotation marks omitted). Even when those three elements are met, whether to

correct the error remains in our discretion, which we will exercise in favor of

correction only if “the error seriously affects the fairness, integrity, or public


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reputation of the judicial proceedings.” Pielago, 135 F.3d at 708 (quoting Johnson

v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 1549 (1997)).

      The admission of the lab results without providing Reese an opportunity to

confront and cross-examine the lab technician was not plain error, because neither

this Court nor the Supreme Court has held that the Sixth Amendment applies in

supervised release revocation hearings. See Dortch, 696 F.3d at 1112 (“An error is

not obvious and clear when no Supreme Court decision squarely supports the

defendant's argument, other circuits are split regarding the resolution of the

defendant's argument, and we have never resolved the issue.”) (quotations marks

omitted) (alterations omitted). In fact, it was not error at all: The Sixth

Amendment applies only to “criminal prosecutions,” which does not include parole

revocation hearings. See U.S. Const. Amend. VI.; Morrissey v. Brewer, 408 U.S.

471, 480, 92 S.Ct. 2593, 2600 (1972) (“We begin with the proposition that the

revocation of parole is not part of a criminal prosecution and thus the full panoply

of rights due a defendant in such a proceeding does not apply to parole

revocations.”). And not only is it “apparent to this court that Congress equated

supervised release revocation with probation revocation,” but “courts treat

revocations the same whether they involve probation, parole, or supervised

release.” See United States v. Frazier, 26 F.3d 110, 113 (11th Cir. 1994). To top it

off, eight other circuits have held that the Sixth Amendment does not apply in


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hearings for the revocation of supervised release, probation, or parole. See Curtis

v. Chester, 626 F.3d 540, 544 (10th Cir. 2010); Valdivia v. Schwarzenegger, 599

F.3d 984, 989 (9th Cir. 2010); United States v. Ray, 530 F.3d 666, 668 (8th Cir.

2008); United States v. Kelley, 446 F.3d 688, 691–92 (7th Cir. 2006); United

States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006); Ash v. Reilly, 431 F.3d 826,

829–30 (D.C. Cir. 2005); United States v. Rondeau, 430 F.3d 44, 47 (1st Cir.

2005); United States v. Kirby, 418 F.3d 621, 627–28 (6th Cir. 2005). We make it

nine.

        Reese also contends that the district court erred in finding that the substances

that the police seized on his property were controlled substances, a finding which

we review only for clear error. See United States v. Almand, 992 F.2d 316, 318

(11th Cir. 1993). There was testimony that the substances were in fact controlled

substances. The district court’s finding that they were is not clearly erroneous.

        AFFIRMED.




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