UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4434
JAMES BROOKS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Malcolm J. Howard, District Judge.
(CR-96-9-HO)
Submitted: January 21, 2003
Decided: February 6, 2003
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Michael W. Patrick, LAW OFFICE OF MICHAEL W. PATRICK,
Chapel Hill, North Carolina, for Appellant. Frank D. Whitney, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. BROOKS
OPINION
PER CURIAM:
James Brooks appeals the revocation of his term of supervised
release imposed upon his conviction of conspiracy to distribute
cocaine base and the imposition of a forty-eight-month sentence.
Brooks argues that the district court erred in finding two Class A
supervised release violations based on hearsay evidence and in deter-
mining his sentence based on an incorrect criminal history category.
Because Brooks did not raise either of these claims in the district
court, our review is for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 732 (1993). We affirm.
During the revocation hearing, Detective Adams testified that he
investigated a shooting at the Strack Lounge. Although the victim,
Monquel Ross, did not know the shooter, other patrons of the lounge
identified the shooter as "Black." In the course of his investigation,
Adams located a confidential informant who gave him Brooks’ name
and stated that Brooks admitted to him that he had shot someone at
the Strack Lounge. Ross subsequently identified Brooks from a photo
array. Charges arising from this incident were later dismissed when
Ross decided "it would be in his best interest" not to proceed with the
case. Brooks did not object to any of Adams’ testimony and did not
cross-examine him. Indeed, Brooks entered a plea of "no contest" to
the two Class A violations of possessing a firearm and shooting Ross.
On appeal, Brooks challenges the district court’s finding that he
committed the alleged violations asserting that the only evidence
against him was uncorroborated hearsay. We may correct error that
is both plain and prejudicial if such error "substantially affect[s] the
fairness, integrity or public reputation of judicial proceedings."
Olano, 507 U.S. at 732. Even assuming, as Brooks contends, that the
district court committed plain error in failing to make a specific find-
ing of good cause for not allowing confrontation, we decline to exer-
cise our discretionary power to correct such an error because we find
that the hearsay in this case was sufficiently reliable. See United
States v. McCallum, 677 F.2d 1024, 1026 (4th Cir. 1982) (allowing
admission of hearsay testimony during revocation hearing, as long as
it is reliable); see also United States v. Alaniz-Alaniz, 38 F.3d 788,
UNITED STATES v. BROOKS 3
791 (5th Cir. 1994) (applying plain error analysis where defendant
failed to object to district court’s failure to conduct balancing test, but
declining to exercise discretion to grant relief "even assuming" plain
error had been committed). But see Belk v. Purkett, 15 F.3d 803, 813-
14 (8th Cir. 1994) (finding defendant’s request to confront adverse
witness irrelevant because state bears burden to produce witness or
show good cause for not doing so). Finding no plain error in the
admission of the hearsay statements, we affirm the district court’s
decision to revoke Brooks’ supervised release.
Brooks also challenges the use of criminal history category V in
the determination of his sentence. He asserts that the presentence
report prepared prior to his sentencing on the conspiracy charge incor-
rectly attributes criminal history points for a firearm offense that he
asserts was part of the conspiracy. Brooks failed to raise this claim in
the district court, and therefore, to prevail on this issue, he must show
that the court’s failure to sua sponte reexamine his criminal history
computation was plainly erroneous. Olano, 507 U.S. at 732. He has
not made this showing. There is no information in the presentence
report—or anywhere in the record—that Brooks was acting in further-
ance of the drug conspiracy when he was found in possession of a
stolen firearm. Thus, we find no error—much less plain error—in the
attribution of criminal history points for the firearm offense. See
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990) (holding
that court is free to adopt findings in presentence report absent an
affirmative showing of error).
Moreover, even if Brooks had established error, he could not show
that such error "seriously affect[s] the fairness, integrity or public rep-
utation of judicial proceedings." Olano, 507 U.S. at 732. Upon revo-
cation of his supervised release, the district court had authority to
sentence Brooks to up to 60 months. The court imposed a 48-month
sentence, within the recommended 46 to 57 month range. See U.S.
Sentencing Guidelines Manual § 7B1.4, p.s. (1995); United States v.
Davis, 53 F.3d 638, 642 (4th Cir. 1995) (sentencing ranges for revo-
cation are advisory, not binding). We find that Brooks cannot show
that the district court’s failure to sua sponte reexamine his criminal
history category amounted to plain error. See USSG § 7B1.4, p.s.,
comment. (n.1) ("criminal history category is not to be recalculated");
USSG § 7B1.4, p.s., comment. (n.4) ("When the original sentence
4 UNITED STATES v. BROOKS
was the result of a downward departure (e.g., as a reward for substan-
tial assistance), . . . an upward departure may be warranted.").
Having found that the district court did not plainly err in revoking
Brooks’ supervised release or in determining his sentence, we affirm.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED