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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 13-11025
Non-Argument Calendar
D.C. Docket No. 8:01-cr-00046-SDM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN JEFFERY CARR,
Defendant-Appellant.
Appeal from the United States District Court for
the Middle District of Florida
(July 29, 2014)
Before HULL, MARCUS and FAY, Circuit Judges.
PER CURIAM:
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John Carr appeals the revocation of his supervised release and imposition of
a 36-month sentence, pursuant to 18 U.S.C. § 3583(e). After review of the record
and the parties’ briefs, we affirm.
I. BACKGROUND
A. Conviction and Sentence
In 2001, Carr pled guilty to possession with intent to distribute crack cocaine
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), a class B felony. Carr
received a 92-month sentence, followed by 60 months of supervised release. After
completing his term of incarceration, Carr began his term of supervised release.
B. First Petition for Revocation
Carr violated the terms of his supervised release several times. As a result,
in March 2012, the probation officer filed a petition to revoke Carr’s supervised
release. The petition alleged that Carr violated the terms of his supervised release
in eight ways: (1) using marijuana illegally; (2) failing to notify the probation
officer within 72 hours after being arrested or questioned by a law enforcement
officer; and (3) being convicted of six new crimes (driving with a suspended or
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revoked license (four times), possessing more than one Florida driver’s license,
and not having a valid driver’s license). 1
C. First Revocation Hearing
On October 1, 2012, the district court held a revocation hearing. At that
hearing, Carr admitted to committing the eight violations alleged in the probation
officer’s petition.
After hearing from the prosecutor, defense counsel, the probation officer,
and Carr, the district court decided not to revoke Carr’s supervised release at that
time. Instead, the district court offered Carr “a bit of a deal.” In exchange for
Carr’s word that he could complete the remaining term of his supervised release
“uneventfully,” the district court agreed to “extend [Carr] that opportunity.” The
district court warned Carr, however, that he could “bet on” being incarcerated if he
was brought before the court for further violations of the terms of his supervised
release.
The district court continued the revocation hearing.
1
The government withdrew one additional alleged supervised-release violation for
driving with a suspended license.
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D. Amended Petition for Revocation
Approximately seven weeks later, on November 18, 2012, Carr violated the
terms of his supervised release by breaking into his ex-girlfriend’s home through a
window, battering her, and damaging her phone when she tried to call for help.
Based on these acts, the probation officer amended the petition to revoke
Carr’s supervised release by adding three new violations. The amended petition
alleged that Carr violated his supervised release by engaging in three types of
criminal conduct, namely: (1) burglary of a dwelling, (2) domestic violence
battery, and (3) criminal mischief.
E. Second Revocation Hearing
On February 28, 2013, the district court resumed the revocation hearing that
was continued in October 2012. Carr pled “not true” to the three supervised
release violations that were predicated on his November 2012 conduct.
The district court conducted a lengthy, evidentiary hearing to determine
whether Carr violated the terms of his supervised release. In that hearing, several
witnesses to the November 2012 burglary and battery testified: the victim (Carr’s
ex-girlfriend and the owner of the home that Carr entered by force), the victim’s
friend (who was present during the November 2012 break-in), the responding
police officer, and a 911 dispatch officer.
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Shereka Watson, the victim and Carr’s ex-girlfriend, testified that Carr
kicked in a window air conditioning unit in her home’s living room; entered her
home through that window; went to her bedroom; “rough[ed] [her] up” by
grabbing her, shaking her, and throwing her on the bed; yelled and cussed at her;
and when she tried to call 911, grabbed her phone and threw it on the floor.
Watson’s friend offered substantially similar testimony.
The responding police officer testified that, on the day of the incident,
Watson and her friend made statements consistent with their courtroom testimony.
And, the government offered Watson’s sworn, written statement, which she
prepared for the police officer on the date of the incident. Watson’s written
statement also corroborated the testimony presented at the hearing.
The 911 dispatch officer testified that her office received a call from Watson
stating that Carr had kicked in a window air conditioning unit, entered Watson’s
residence, “jumped” on her, and fled the scene. A 911 call log, made
contemporaneously with that call, substantially corroborated this testimony.
The government moved to admit a recording of the 911 call into evidence.
Carr objected on the grounds that that the 911 call was unreliable hearsay because
it was made after Carr left Watson’s residence and, therefore, there was no ongoing
emergency to render the statements in the call reliable. The district court admitted
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the 911 call, stating that the call was “comfortably within the realm of sufficiently
reliable” evidence. The 911 call was consistent with the other testimony and
evidence presented at the hearing.2
After considering all of the evidence relating to the November 2012
incident, the district court found that the government had proven by a
preponderance of the evidence that Carr committed the three contested violations:
burglary of a dwelling, domestic violence battery, and criminal mischief.
F. Probation Officer’s Violation Report
In February 2013, the probation officer prepared a probation violation report
that (1) outlined the procedural history in Carr’s case; (2) described Carr’s
supervision history, including his supervised release violations; and (3) provided
the district court with sentencing options based on statutory provisions and
guidelines calculations. As set forth in that report, Carr’s criminal history category
at the time of his original sentencing was VI. This history included five scored
offenses that included multiple convictions for possessing and selling cocaine and
resisting arrest.
2
Watson identified herself as the speaker in the 911 recording.
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Ten of Carr’s eleven supervised release violations qualified as Grade C
violations, but the burglary of a dwelling offense qualified as a Grade A violation
under U.S.S.G. § 7B1.1(a)(1).
Based on his criminal history category of VI and commission of a Grade A
violation, Carr’s advisory guidelines range for revocation purposes was 33 to 41
months’ imprisonment. See U.S.S.G. § 7B1.4(a)(1). However, because the
maximum statutory penalty was 36 months’ imprisonment, the applicable
guidelines range became 33 to 36 months’ imprisonment. See 18 U.S.C.
§ 3583(e)(3).
G. Carr’s Sentence
The district court adopted the 33- to 36-month advisory guidelines range
from the probation officer’s violation report. Carr requested a 12-month sentence
on the grounds that his criminal history category of VI substantially
overrepresented his criminal history. The government requested a 36-month
sentence.
The district court heard from Carr and Carr’s mother in mitigation. The
district court then “considered the policies and Guidelines of the United States
Sentencing Commission”; the “advisory guideline range”; Carr’s personal and
criminal history, including his “consistent inability to comply with criminal law”
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and “the terms of [his] probation and . . . supervised release” in state and federal
court; and the need to protect the public. The district court noted that Carr was not
“very susceptible to deterrence” given that he violated the terms of his supervised
release “so soon after” the district court had shown him leniency by declining to
incarcerate him based on earlier supervised-release violations.
Ultimately, the district court sentenced Carr to a 36-month guidelines
sentence with no supervised release. Carr now appeals.
II. DISCUSSION
A. Evidentiary Challenge3
Carr argues that the district court erred by admitting the 911 call at Carr’s
second revocation hearing because (1) the call was unreliable hearsay and (2) its
admission violated Carr’s Confrontation Clause rights.
“Although the Federal Rules of Evidence do not apply in supervised release
revocation hearings, the admissibility of hearsay is not automatic.” United States
v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994). In deciding whether to admit
hearsay testimony, the court must (1) balance the defendant’s right to confront
3
We review constitutional challenges de novo. United States v. Cunningham, 607 F.3d
1264, 1266 (11th Cir. 2010). We review evidentiary rulings for an abuse of discretion. United
States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002). A district court abuses its discretion if it
applies an incorrect legal standard or makes findings of fact that are clearly erroneous. United
States v. Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009).
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adverse witnesses against the grounds asserted by the government for denying
confrontation and (2) ensure that the hearsay statement is reliable. Id.
Assuming, without deciding, that the contested 911 call contained hearsay,
the call’s admission did not violate Carr’s right to confront the 911 caller and was
otherwise reliable. Therefore, the district court did not abuse its discretion by
admitting the 911 call into evidence.
First, Watson, the declarant in the 911 call, testified at the revocation hearing
and was subject to cross-examination. Therefore, Carr’s right to confront Watson
was not violated. See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct.
1354, 1369 n.9 (2004) (noting that a defendant’s right to confront the declarant is
satisfied where the declarant appears for cross-examination).
Second, the statements in the 911 call were reliable. Most, if not all, of the
evidence submitted at the revocation hearing—e.g., the 911 call log; Watson’s
testimony; Watson’s written statement; Watson’s friend’s testimony; the
responding police officer’s testimony; and the photographic evidence from the
scene—corroborated the statements in the call. See United States v. Gordon, 231
F.3d 750, 761 (11th Cir. 2000) (stating, in the sentencing context, that materially
consistent evidence provides adequate indicia of reliability of hearsay statements).
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Finally, even assuming arguendo that the district court erred in admitting the
911 call, the aforementioned corroborating evidence overwhelmingly establishes
that Carr violated the conditions of his supervised release and, therefore, any
evidentiary error regarding the 911 call was harmless. Frazier, 26 F.3d at 114
(noting that an evidentiary error is harmless where the properly considered
evidence overwhelmingly demonstrates that the defendant breached the terms of
his supervised release).
B. Reasonableness of the Sentence 4
Carr also argues that his sentence is procedurally and substantively
unreasonable because the district court (1) did not treat the Guidelines as advisory
and (2) abused its discretion in weighing the 18 U.S.C. § 3553 factors.
If the district court finds that the defendant violated a supervised release
condition, the court may revoke the supervised release term and impose a prison
term after considering certain factors set forth in 18 U.S.C. § 3553(a).5 These
4
“We review the sentence imposed upon the revocation of supervised release for
reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008).
Our reasonableness review applies the deferential abuse of discretion standard. Gall v. United
States, 552 U.S. 38, 41, 46, 128 S. Ct. 586, 591, 594 (2007).
5
Specifically, in a revocation proceeding, the factors the district court must consider
include (1) the nature and circumstances of the offense and the history and characteristics of the
defendant; (2) the need for the sentence imposed to afford adequate deterrence, protect the
public, and provide the defendant with needed educational or vocational training and medical
care; (3) the advisory guidelines range and pertinent policy statements of the U.S. Sentencing
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factors include consideration of the policy statements in Chapter 7 of the
Sentencing Guidelines, which includes recommended ranges of imprisonment.
United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006); U.S.S.G. § 7B1.4.
In reviewing for reasonableness, we first consider whether the district court
committed any significant procedural error and then whether the sentence is
substantively unreasonable in light of the relevant § 3553(a) factors and the totality
of the circumstances. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).
The party challenging the sentence has the burden to show it is unreasonable. Id.
at 1189.
As to the procedural reasonableness of his sentence, Carr asserts that the
district court failed to treat the Guidelines as advisory because the district court
stated that it had “no choice” but to impose a high-end guidelines sentence. Carr
takes this “no choice” statement out of context. Before pronouncing Carr’s
sentence, the district court expressly stated that it had considered the “advisory
guideline range” and the record indicates that the district court considered the
relevant § 3553(a) factors. Only after considering “all those factors” did the
Commission; (4) the need to avoid unwarranted sentence disparities; and (5) the need to provide
restitution. See 18 U.S.C. § 3583(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),
(a)(4)-(7)).
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district court state that it had “no choice” but to sentence Carr to 36 months’
imprisonment to preserve the “integrity of the sentencing process.” This was not
procedural error. Therefore, Carr has failed to show that his sentence is
procedurally unreasonable.
Carr also failed to demonstrate that his sentence is substantively
unreasonable. The district court’s 36-month sentence was within the applicable
guidelines range of 33 to 36 months. We ordinarily expect a sentence within the
guidelines range to be reasonable. See United States v. Hunt, 526 F.3d 739, 746
(11th Cir. 2008).
The district court considered many factors in reaching its decision, including
Carr’s personal and criminal history, Carr’s consistent inability to comply with the
criminal law and the conditions of his supervised release, the need for deterrence,
and the need to protect the public. Considering Carr’s extensive criminal history
and repeated violations of the terms of his supervised release, we cannot say that
the district court abused its discretion by “commit[ing] a clear error of judgment in
weighing the § 3553(a) factors” and imposing a high-end, guidelines sentence.
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). Therefore,
Carr failed to show that his sentence is substantively unreasonable.
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C. Standard of Proof
Carr argues that the preponderance-of-the-evidence standard for evaluating
supervised release violations is unconstitutional and that the standard should be
proof beyond a reasonable doubt.
Carr’s argument is foreclosed by this Court’s precedent. See United States
v. Cunningham, 607 F.3d 1264, 1268 (11th Cir. 2010) (holding that a violation of
supervised release need only be proven by a preponderance of the evidence).
Thus, the district court used the appropriate standard when determining whether
Carr violated the conditions of his supervised release.
AFFIRMED.
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