                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               February 3, 2017
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.
                                                       No. 15-6181
 TREMALE ODALE HENRY,

       Defendant - Appellant,




                 Appeal from the United States District Court
                    for the Western District of Oklahoma
                         (D.C. No. 5:06-cr-00088-F-1)


Kyle Edward Wackenheim, Research and Writing Attorney (Teresa K. Brown,
Assistant Federal Public Defender, with him on the briefs), Office of the Federal
Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

Timothy W. Ogilvie, Assistant U.S. Attorney (Mark A. Yancey, Acting U.S.
Attorney, with him on the brief), Office of the U.S. Attorney, Oklahoma City,
Oklahoma, for Plaintiff-Appellee.


Before GORSUCH, BALDOCK, and PHILLIPS, Circuit Judges.


GORSUCH, Circuit Judge.
      What began as a fight at a strip club finds its way here as a clash over

hearsay. Three years ago, Tremale Henry finished a prison sentence for violating

federal drug laws and began a five year term of supervised release. As a

condition of his release Mr. Henry had to refrain from committing further crimes.

But last summer he was arrested for assaulting another man outside Night Trips,

an Oklahoma City night club. And at the probation revocation hearing that

followed the district court found Mr. Henry responsible for two separate assaults

with a dangerous weapon. In the first assault, the court found that Mr. Henry

swung a knife at his victim but missed. In the second assault an hour later, the

court found that Mr. Henry struck again, this time successfully stabbing his

victim. The court found each assault independently sufficient to warrant

revocation of Mr. Henry’s supervised release. It then concluded that the two

assaults, along with a third violation for lying to his probation officer,

collectively warranted a new prison term of 24 months followed by six further

years of supervised release. On appeal Mr. Henry argues that the district court

impermissibly relied on hearsay in reaching its judgment, but with this we can

only partially agree.

      Take the first assault first. In finding that Mr. Henry committed this

assault the district court relied largely on statements from Candace Ramsey. Ms.

Ramsey testified at the revocation hearing that she saw Mr. Henry lunge at his

victim with a small object, though she said she couldn’t see exactly what the

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object was. Meanwhile, a probation officer took the stand to relate that, before

the hearing, Ms. Ramsey told him she had, in fact, seen Mr. Henry use a knife.

The district court apparently credited this hearsay. The court also said it relied on

a surveillance video. To be sure, the video “was of poor quality” and it is not

possible to discern a knife. But the video does show Mr. Henry making a rapid

movement toward the victim, followed by witnesses fleeing the area, and the

court found this reaction consistent with a violent assault involving a dangerous

weapon. In reaching its judgment, the district court considered as well testimony

from the defendant’s own witnesses who suggested that the victim “deserved what

happened to him that night” and that there was “ill will” between the two men.

Taken together, the court found, these facts established Mr. Henry indeed

committed the first assault with a dangerous weapon.

      We see no problem with the district court’s findings here. Mr. Henry

doesn’t object to the use of the video, to Ms. Ramsey’s live testimony, or to the

district judge acting as fact-finder. His only qualm is with the court’s apparent

reliance on Ms. Ramsey’s hearsay statement, relayed by the probation officer, that

she had seen a knife. But the fact is that “the usual rules of evidence need not be

applied” in revocation hearings. See Fed. R. Crim. P. 32.1 advisory committee’s

note to 1979 amendment. Indeed, the Supreme Court and this one have long

allowed hearsay in supervised release proceedings: sometimes the government

will use hearsay in arguing for revocation; sometimes the defendant will use

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hearsay in arguing against revocation (as Mr. Henry himself did in this case). In

neither event are confrontation or due process rights necessarily denied, for under

settled precedent the Confrontation Clause of the Sixth Amendment does not

apply to supervised release revocation proceedings and the due process guarantees

associated with these proceedings are “minimal.” See Morrissey v. Brewer, 408

U.S. 471, 485, 489 (1972) (describing due process guarantees at revocation

hearings as “minimal” and explaining that “the process should be flexible enough

to consider evidence . . . that would not be admissible in an adversary criminal

trial”); see also Fed. R. Evid. 1101(d)(3) (federal rules of evidence do not apply

in proceedings “granting or revoking probation or supervised release”); Pa. Bd. of

Prob. & Parole v. Scott, 524 U.S. 357, 366 (1998); Curtis v. Chester, 626 F.3d

540, 544 (10th Cir. 2010) (the Sixth Amendment Confrontation Clause does not

apply to supervised release proceedings).

      In the face of all this, Mr. Henry attempts a reply along these lines. He

notes that Fed. R. Crim. P. 32.1(b)(2)(C) grants defendants in revocation hearings

the opportunity to “question any adverse witness, unless the judge determines that

the interest of justice does not require the witness to appear.” Mr. Henry

observes, too, that in United States v. Jones, this court recently held the proper

application of Rule 32.1(b)(2)(C) generally requires a district court to deploy a

“balancing test” aimed at weighing the defendant’s interests in confronting a

witness against the government’s interests in foregoing the witness’s appearance.

                                         -4-
818 F.3d 1091, 1097-98 (10th Cir. 2016). And, Mr. Henry contends, the district

court in this case failed to apply Jones’s balancing test to Ms. Ramsey’s hearsay

statement, meaning its decision must be reversed.

      This reply, however, overstates the reach of the rule. For neither Rule

32.1(b)(2)(C) nor the Jones decision interpreting it applies to the admission of

hearsay statements from witnesses who are available for cross-examination. By

its express terms Rule 32.1(b)(2)(C) speaks only to whether an adverse witness is

“require[d] . . . to appear” so that defendants might have the “opportunity to . . .

question” her. In Jones, likewise, this court “confine[d] our analysis to [the

defendant’s] right to confront [the witness in question],” addressing only “Mr.

Jones’s strong interest in confrontation and cross-examination.” Jones, 818 F.3d

at 1097, 1102 (emphasis added). And, as everyone acknowledges, Ms. Ramsey

did appear at the hearing and Mr. Henry did have the chance to question her about

her hearsay statement and its apparent inconsistency with her live testimony.

Indeed, it would be pretty anomalous if the qualified confrontation interest

recognized by Rule 32.1 and our precedent conveyed rights in revocation hearings

more powerful than those conveyed by the Sixth Amendment Confrontation

Clause in criminal trials, for even in that setting the express terms of the Clause

itself do nothing to “bar admission of a [hearsay] statement so long as the

declarant is present at trial to defend or explain it.” Crawford v. Washington, 541

U.S. 36, 59 n.9 (2004).

                                         -5-
      So it is Mr. Henry has no valid complaint under Rule 32.1(b)(2)(C) or

Jones with respect to the first assault. He was free to confront Ms. Ramsey and,

in this way, he was afforded everything the rule and our precedent interpreting it

might provide. Of course, in holding Rule 32.1(b)(2)(C) and Jones do not apply

to hearsay from witnesses present for confrontation, we do not suggest this sort of

hearsay is always admissible. As ever, a district court’s receipt of evidence

remains subject to review for abuse of discretion. See United States v. Handley,

678 F.3d 1185, 1188 (10th Cir. 2012). And revocation hearings must of course

always satisfy “minimal” due process demands. Morrissey, 408 U.S. at 485. But

no one suggests Ms. Ramsey’s statement to the probation officer falls afoul of

these standards. 1

      When it comes to the second assault, the equation changes. In finding the

second assault occurred the district court expressly relied on out-of-court

statements the victim and his girlfriend made to a police detective, who in turn

relayed them to Mr. Henry’s probation officer, who in turn presented them at the

revocation hearing. Neither the victim, nor his girlfriend, nor even the detective

      1
         In his reply brief Mr. Henry argues for the first time that the government
failed to afford him with adequate notice before his hearing that he faced the
possibility of revocation for the first assault. But where an appellant raises an
issue for the first time in his reply brief, we generally deem it waived. Wheeler v.
Comm’r, 521 F.3d 1289, 1291 (10th Cir. 2008). And in any event we do not see
anything here that would amount to plain error, for the Tenth Circuit has yet to
require the government to provide a “high degree of specificity” when providing
notice about upcoming probation revocation hearings. United States v. Mullane,
480 F. App’x. 908, 910-11 (10th Cir. 2012) (unpublished).

                                        -6-
was subject to cross-examination. Here, then, Rule 32.1(b)(2)(C) and Jones do

apply, and here we must find error for the district court failed to conduct the

balancing test Jones prescribes. To be clear, we can hardly fault the district court

for this oversight: it decided Mr. Henry’s case before this court issued Jones and

lacked the benefit of its guidance. But the fact remains all the same that Mr.

Henry is entitled to the advantages afforded by intervening legal developments

like Jones. See Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987).

      The government doesn’t dispute any of this. Instead, it tries to work

around the problem by pointing to the district court’s statement that the admission

of hearsay from absent witnesses in this case was designed to serve the “interest

of justice,” a phrase used in the text of Rule 32.1(b)(2)(C) itself. And invoking

this phrase, the government seems to suggest, should suffice in lieu of engaging

with the Jones balancing test.

      We cannot quite agree. The government can’t (and doesn’t) dispute that

Jones offers controlling guidance concerning how district courts should go about

determining if the “interest of justice” permits the introduction of hearsay from

absent witnesses. Neither does (or can) the government dispute that Jones

generally demands the application of a balancing test, or that the advisory note to

Rule 32.1 expressly endorses the same test. And perhaps most importantly, the

government doesn’t (and can’t) dispute that Jones itself rejected the very same

argument it attempts here, expressly rebuffing the government’s suggestion it was

                                         -7-
enough for the district court to have cited the “interest of justice” language of

Rule 32.1 without engaging its balancing test. Jones, 818 F.3d at 1100.

Affording Jones the respect due precedent, we just don’t see how we might

faithfully hold otherwise here.

      The question remains, of course, whether the error here proved harmless.

See Fed. R. Crim. P. 52(a). The government suggests any error in the admission

of hearsay concerning the second assault was indeed harmless because the district

court needed to find only one assault to revoke Mr. Henry’s supervised release,

and its error-free finding on the first assault will do.

      But though attractive on first blush, closer scrutiny reveals problems with

this argument too. It’s certainly true, as the government notes, that the district

court found each assault independently sufficient to warrant revocation. But after

doing that much the court proceeded to consider both of these violations together

when fashioning its sentence, adding to the mix a third violation not challenged

here (Mr. Henry’s lies to his probation officer). And on the record before us, we

simply cannot disaggregate what role, if any, the second violation played in the

district court’s final sentencing decision. To be sure, the court selected a

sentence at the bottom end of the guidelines range. But the range was of course

only advisory, so the defendant could have (and did) request a downward

variance. And we cannot be sure that, had the court ruled differently on the

second violation, it still would have denied a variance and issued the sentence it

                                          -8-
did. Had the court indicated its intention to issue the same sentence without

respect to the second assault, we might be convinced that the error was harmless.

See, e.g., United States v. Cordova-Arevalo, 456 F.3d 1229, 1235 (10th Cir.

2006); United States v. Anderson, 189 F.3d 1201, 1214 (10th Cir. 1999). But

nothing like that exists in the record. And where, as here, we can only speculate

what sentence the district court would have issued absent a legal error, our

precedent indicates that the error is not harmless, and that the matter should be

returned to the district court for resentencing. See, e.g., United States v.

Harrison, 743 F.3d 760, 764 (10th Cir. 2014). 2

      On remand, the district court’s options remain considerable. It might

engage in a new sentencing analysis without relying on the second assault as a

second independent probation violation. It might conduct a Jones balancing test

and determine the hearsay from absent witnesses was, indeed, properly considered

in finding the second assault took place. It might conduct the Jones test,

determine that the hearsay from absent witnesses it entertained was not properly

considered, and conduct a new hearing on the second assault. Or it might

consider even a still different path. We do not encourage or prejudge the

propriety of any potential remedial avenue, but hold only that on the record

      2
         Having found that the Jones error here doesn’t qualify as harmless under
Fed. R. Crim. P. 52(a), we have no need to consider whether a Jones error might
trigger an even more heightened constitutional harmless error analysis.



                                         -9-
before us the failure to conduct a Jones balancing test cannot be dismissed as

harmless error. 3

      Remanded.




      3
          In a petition for panel rehearing filed after we issued our decision, the
government attempts yet another harmless error argument. Here the government
accepts that the district court erred in finding a second independent probation
violation at the (so-called) “guilt” phase of the revocation proceedings without
first engaging the Jones test. But it claims this error was harmless because the
district court would have been free under United States v. Ruby, 706 F.3d 1221,
1226 (10th Cir. 2013), to consider hearsay evidence about any “bad acts” of any
sort at the “sentencing” phase of its revocation proceedings without addressing
the Jones test. However that may be, though, this particular argument never
found its way to us until the petition for panel rehearing so it has been forfeited.
United States v. Charley, 189 F.3d 1251, 1264 n.16 (10th Cir. 1999)). Further
and even on its own terms, the argument doesn’t quite satisfy. For even if the
district court could have considered hearsay evidence about the second assault at
the “sentencing phase” without first engaging the Jones test, that’s not what
happened here. The district court used the second assault to find a second
independent supervised release violation at the “guilt” phase of the revocation
proceedings. And short of speculation we just cannot be sure what impact the
district court’s finding of a second and independent probation violation at the
“guilt” phase had on its “sentencing” decision. Maybe in the district judge’s
mind nothing turned on whether the evidence surrounding the assault formally
amounted to a second, independent violation instead of just more “bad acts”; but
maybe it did. After all, district courts not infrequently cite the existence of
multiple, independent supervised release violations (not just the “bad acts”
underlying them) as factors influencing their sentencing decisions. See, e.g.,
United States v. Fulton, 567 F. App’x 668, 673 (10th Cir. 2014); United States v.
Keller, 372 F. App’x 883, 889 (10th Cir. 2010); United States v. Hooks, 368 F.
App’x 885, 888 (10th Cir. 2010). Neither is harmless error doctrine license for
rank speculation. When it comes to the loss of liberty, it is better to know on
remand than guess on appeal.

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