[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14114 ELEVENTH CIRCUIT
OCTOBER 5, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 01-00032-CR-3-LAC-MD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WARREN CHARLTON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(October 5, 2010)
Before EDMONDSON, BLACK and MARTIN, Circuit Judges.
PER CURIAM:
Warren Charlton appeals his 24-month sentence imposed following
revocation of his term of supervised release under 18 U.S.C. § 3583(e)(3). On
appeal, Charlton contends the district court plainly erred by imposing an upward
departure based solely on hearsay statements contained in the revocation petition
filed by his probation officer. He observes that the district court failed to follow
the procedures for considering hearsay evidence set forth in United States v.
Frazier, 26 F.3d 110 (11th Cir. 1994).
Where, as here, a defendant did not raise a claim of sentencing error before
the district court, we review only for plain error. United States v. Dudley, 463 F.3d
1221, 1227 (11th Cir. 2006). Under the plain error standard, the defendant must
show: (1) an error, (2) that is plain, and (3) that affects his substantial rights. Id. If
all three factors are met, we “may exercise discretion and correct the error if it
seriously affects the fairness, integrity, or public reputation of the judicial
proceedings.” Id. For an error to be plain, it must be “clear under current law.”
United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (quotation omitted).
If neither our Court nor the Supreme Court has resolved an issue, the defendant
cannot establish plain error with respect to that issue. Id.
“[P]lain error review should be exercised sparingly, and only in those
circumstances in which a miscarriage of justice would otherwise result. . . . [W]e
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have explained that our power to review for plain error is limited and
circumscribed, that the plain error test is difficult to meet, and that the plain error
rule places a daunting obstacle before the appellant.” United States v. Rodriguez,
398 F.3d 1291, 1298 (11th Cir. 2005) (quotations and citations omitted).
“Although the Federal Rules of Evidence do not apply in supervised release
revocation hearings, the admissibility of hearsay is not automatic.” Frazier, 26
F.3d at 114. “Defendants involved in revocation proceedings are entitled to certain
minimal due process requirements[,]” including “the right to confront and
cross-examine adverse witnesses.” Id. Before hearsay evidence may be admitted
at a revocation hearing, the district court therefore “must balance the defendant's
right to confront adverse witnesses against the grounds asserted by the government
for denying confrontation.” Id.1
To establish a due process violation resulting from the district court’s
admission of hearsay evidence in a sentencing hearing, “[t]he defendant must show
1
Frazier involved a challenge to a district court’s finding that the defendant violated the
terms of supervised release. See Frazier, 26 F.3d at 114. We have not addressed whether a
district court must conduct a Frazier analysis before considering hearsay evidence in connection
with a sentence imposed following revocation of supervised release. Nevertheless, the standard
for admission of hearsay at sentencing is analogous to the Frazier standard. Cf. United States v.
Baker, 432 F.3d 1189, 1253 (11th Cir. 2005) (explaining that a district court may consider
hearsay evidence at sentencing, “provided that the evidence has sufficient indicia of reliability,
the court makes explicit findings of fact as to credibility, and the defendant has an opportunity to
rebut the evidence”). Moreover, both parties analyze this case under Frazier. Therefore, we
assume for the purposes of this appeal that Frazier applies to a sentence imposed following
revocation of supervised release.
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(1) that the challenged evidence is materially false or unreliable, and (2) that it
actually served as the basis for the sentence.” United States v. Taylor, 931 F.2d
842, 847 (11th Cir. 1991) (quotation omitted). “While it may be advisable and in
some instances necessary for a district court to make distinct findings regarding the
reliability of hearsay statements used at sentencing, the absence of such findings
does not necessarily require reversal or remand where the reliability of the
statements is apparent from the record.” United States v. Gordon, 231 F.3d 750
(11th Cir. 2000).
Although Frazier held a district court must engage in a balancing test when
the defendant objects to the admission of hearsay evidence, no published case in
this Circuit or the Supreme Court has held that a district court must explicitly
engage in such analysis in the absence of an objection. In fact, at least one court
has held in a published opinion that a district court does not commit reversible
error simply by failing to explicitly conduct a balancing test when no objection was
raised. See United States v. Stanfield, 360 F.3d 1346 (D.C. Cir. 2004). Because it
is not clear under our precedent whether the district court erred by failing to
explicitly conduct a balancing test in the absence of an objection, such failure
cannot constitute plain error.
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We therefore review the district court’s admission of the hearsay evidence
for plain error despite the court’s failure to explicitly delineate its reasons for doing
so. Charlton has not met his burden of showing that the district court plainly erred
by finding that the facts found in the revocation petition, which were based on the
Texas police report, had “some indicia of reliability.” Taylor, 931 F.2d at 847.
Charlton has failed to demonstrate that the court’s implicit determination that the
evidence was sufficiently reliable to indicate a high risk of felonious conduct
constituted an error that is “clear or obvious, rather than subject to reasonable
dispute.” Puckett v. United States, 129 S. Ct. 1423, 1429 (2009). In other words,
even though the charges against Charlton were ultimately dropped, a reasonable
argument could be made that the revocation petition was sufficiently reliable to
indicate a high risk of new felonious conduct. The district court’s admission of the
hearsay evidence therefore did not constitute plain error. Accordingly, we affirm
Charlton’s sentence.
AFFIRMED.
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