                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 10 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-30434

              Plaintiff - Appellee,              D.C. No. 2:96-cr-00015-DWM-1

  v.
                                                 MEMORANDUM *
CHARLES J. CONNELLY,

              Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                      Argued and Submitted August 3, 2010
                              Seattle, Washington

Before: CANBY, THOMPSON and BERZON, Circuit Judges.

       Charles J. Connelly (“Connelly”) appeals the revocation of his supervised

release and five-year sentence. He contends that the district court violated his due

process and confrontation clause rights by relying on inadmissable hearsay




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
testimony and that his sentence is unreasonable. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

                                      Revocation

      Connelly originally pled guilty to bank and credit card fraud, and was

sentenced to 60 months imprisonment, followed by five years of supervised

release. Within two months of his release, Connelly absconded from supervision,

ultimately fleeing to Mexico. Eight years later, he returned to the United States.

The district court held a revocation hearing and concluded that Connelly violated

the terms of his supervised release on three grounds: (1) absconding to Mexico;

(2) engaging in “deceptive practices” by using Cheri Ann Mulley’s personal

information to obtain credit cards; and (3) engaging in “false pretenses and cheats”

by claiming to be a lawyer and never providing legal services to a South Carolina

inmate.

      Connelly concedes that he violated the terms of his supervised release by

absconding to Mexico. He nevertheless challenges the revocation of his supervised

release on the last two grounds. Although we agree in part with Connelly’s

contention that the district court relied on insufficient and unreliable hearsay

testimony, we affirm the revocation of supervised release.




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       Ms. Mulley and FBI Agent John Teeling testified that Connelly had used

Ms. Mulley’s information to obtain credit cards. Ms. Mulley testified as a

percipient witness. Shortly after allowing Connelly to move in with her, she

learned that Connelly was ordering credit cards in her name as she began receiving

new cards in the mail and phone calls regarding purchases.

      Connelly does not dispute Ms. Mulley’s testimony. Instead, he focuses his

hearsay challenge on one statement Ms. Mulley made regarding a warning she

received from a local banker that a large check had been drawn in her name. But

this statement was not hearsay because it was not offered for its truth. See United

States v. Payne, 944 F.2d 1458, 1472 (9th Cir. 1991), cert. denied, 503 U.S. 975

(1992). It was offered to show the effect on the listener, Ms. Mulley, and explain

why she went to the bank to investigate. Id. It was Ms. Mulley’s investigation at

the bank, not the banker’s warning, that formed the basis of Ms. Mulley’s

testimony that Connelly had issued a check from her account.

      Agent Teeling corroborated Ms. Mulley’s testimony that Connelly used her

identity to obtain credit cards. Agent Teeling testified that, on the basis of his

review of the documents and credit cards discovered in Connelly’s abandoned

apartment, Connelly had used Ms. Mulley’s identity to order at least ten credit

cards. That Agent Teeling was not part of the FBI team that obtained the credit


                                           3
card cache from Connelly’s apartment in 2001 is immaterial. Connelly does not

dispute that he obtained the credit cards using Ms. Mulley’s information; he merely

claims he had her permission to do so.

      With respect to the charge of false pretenses and cheats, the government

offered the testimony of Probation Officer Paul McLean. He testified that a North

Carolina inmate, Mr. Young, telephoned him claiming that he had been defrauded

because he paid Connelly $1,300 for legal services in 2001. Although Officer

McLean’s testimony was hearsay, we conclude that any error in allowing it was

harmless with respect to the revocation of Connelly’s supervised release. See

United States v. Havier, 155 F.3d 1090, 1092 (9th Cir. 1998) (“A due process

violation at a revocation proceeding is subject to harmless error analysis.”).

      Connelly admitted that he absconded to Mexico and violated the terms of his

release. There was also credible evidence supporting the district court’s conclusion

that Connelly had used Ms. Mulley’s identity to fraudulently obtain credit cards

shortly after being released. Either violation provided a sufficient basis to revoke

Connelly’s supervised release regardless of whether he defrauded Mr. Young. See

United States v. Daniel, 209 F.3d 1091, 1094 (9th Cir. 2000) (“Supervised release

can be revoked based upon only one violation.”); 18 U.S.C. § 3565(a).




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                                       Sentence

      The district court sentenced Connelly to the five-year statutory maximum.

We conclude that the sentence is reasonable in this case, even though it is longer

than the twelve to eighteen month range under the Sentencing Guidelines. See

United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009) ( “In the context

of sentencing upon revocation of supervised release, we review the sentence

imposed under the Booker reasonableness standard.”). The district court carefully

considered the Guidelines range and the 18 U.S.C. § 3553(a) factors.

      Connelly’s contention that the district court would not have imposed the

statutory maximum sentence had it not accepted Officer McLean’s hearsay

testimony lacks merit. Connelly’s absconding violation alone exposed him to the

five-year statutory maximum sentence he received because his original convictions

were a Class B felony, giving rise to a maximum of three years on revocation of

supervised release, and a Class C felony, giving rise to a two-year maximum on

revocation of supervised release, thus totaling a five-year maximum. See 18

U.S.C. § 3583(e)(3). Moreover, there was evidence in the record that Connelly had

falsely represented himself as a lawyer. Although this evidence related to events

other than those involving Mr. Young, the district court was entitled to rely on it in

fashioning the sentence. Any violation of Connelly’s due process and


                                           5
confrontation clause rights with regard to the evidence concerning the Young

incident was therefore harmless as to the sentence imposed.

       The court’s decision was based on sufficient evidence and the sentence,

although longer than the Guidelines range, was reasonable under the circumstances

of this case.

       AFFIRMED.




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