                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-13702         ELEVENTH CIRCUIT
                                                     JANUARY 25, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                       ACTING CLERK

                    D. C. Docket No. 04-10030-CR-KMM

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

ANDREW A. PEREZ,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                              (January 25, 2010)

Before TJOFLAT, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

     On June 13, 2005, the district court sentenced Andrew A. Perez to
concurrent prison terms of 46 months, and a three-year term of supervised release,

for conspiring to possess, and possessing, cocaine with intent to distribute.1 On

May 22, 2009, while Perez was on supervised release, the Southern District of

Florida Probation Office petitioned the district court to revoke his supervised

release based on his April 16, 2009 arrest for selling cocaine within 1,000 feet of a

school, in violation of Florida law. The court held an evidentiary hearing on the

petition, and after considering the evidence adduced in support of the petition,

revoked Perez’s supervised release and sentenced him to prison for a term of 24

months. Perez now appeals the court’s decision.

      Included in the evidence presented at the evidentiary hearing was an out-of-

court statement a confidential informant (“CI”) made to the police. The

statement, admitted over Perez’s hearsay objection, was, in essence, that the CI

called Perez to arrange a cocaine purchase—that Perez was a drug dealer. After

making the call, the CI visited Perez’s home, while wearing a listening device, to

complete the purchase. The police monitored, but did not record, the phone

conversation between the CI and Perez, and the conversation between the CI and

Perez while the CI was in Perez’s home. Several officers recognized the other

voice in that conversation as belonging to Perez.



      1
          We affirmed his convictions in United States v. Perez, 473 F.3d 1147 (11th Cir. 2006).

                                                2
      In his brief on appeal, Perez argues that the admission of the CI’s out-of-

court statement violated his due process right to a fair hearing because the district

court did not balance his right to confront the witness with the Government’s

reason for denying confrontation. He maintains that the court was required to ask

the Government why the CI was not produced, especially because the actual reason

the CI was not produced was his refusal to cooperate with state prosecutors. Perez

asserts that the Government’s desire to shield a poor witness from

cross-examination is not good cause for not producing the witness. He asserts,

further, that the court erred in finding the CI’s statement reliable because the CI (1)

had personal disputes with Perez’s family and (2) was unreliable in the state court

prosecution. He maintains that the error was not harmless because the CI’s

statement was an essential part of the Government’s proof that he was the person

who sold the cocaine.

      In addition to the hearsay objection made in the district court, Perez argues

here, for the first time, that the district court’s admission of the CI’s statement

violated his rights under the Sixth Amendment’s Confrontation Clause.

Acknowledging that our unpublished decisions hold that the Confrontation Clause

is not applicable to supervised release proceedings, Perez says those decisions were

wrong.



                                            3
       We review a district court’s evidentiary decisions for abuse of discretion.

United States v. Novaton, 271 F.3d 968, 1005 (11th Cir. 2001). We review de

novo the scope of a defendant’s constitutional rights. United States v. Cantellano,

430 F.3d 1142, 1144 (11th Cir. 2005). When an issue is not raised in the district

court, we consider the issue under the plain error doctrine. United States v.

Arbolaez, 450 F.3d 1283, 1291 (11th Cir. 2006).2 Plain error exists if there was

“(1) error, (2) that is plain, and (3) affects substantial rights. If all three conditions

are met, we may exercise our discretion to notice a forfeited error, but only if (4)

the error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. Although the Federal Rules of Evidence governing hearsay do

not apply in supervised release revocation proceedings, defendants are entitled to

certain minimal due process requirements, including the right to confront and cross

examine adverse witnesses. United States v. Frazier, 26 F.3d 110, 114 (11th Cir.

1994). In deciding whether to admit hearsay testimony, “the court must balance

the defendant’s right to confront adverse witnesses against the grounds asserted by

the government for denying confrontation.” Id. In addition, the hearsay evidence

must be reliable. Id.



       2
         Perez’s hearsay objection did not in and of itself include a Confrontation Clause
objection so as to preserve the latter objection for appellate review. Arbolaez, 450 F.3d at 1291
n.8.

                                                4
      The district court did not abuse its discretion in admitting the CI’s hearsay

statement because the court, on the record, explicitly balanced Perez’s right to

confront the CI with the Government’s reasons for not calling the CI to the stand.

Moreover, given the overwhelming evidence that Perez committed the supervised

release violation asserted in the Probation Office’s petition, Perez’s substantial

rights were not affected; hence, the plain error doctrine affords him no relief.

      AFFIRMED.




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