[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-13111 ELEVENTH CIRCUIT
Non-Argument Calendar JANUARY 20, 2010
________________________ JOHN LEY
ACTING CLERK
D. C. Docket No. 01-00975-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARIASMENDY PILIER,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 20, 2010)
Before EDMONDSON, BIRCH and MARCUS, Circuit Judges.
PER CURIAM:
Arismendy1 Pilier appeals his 15-month sentence, imposed following
revocation of his supervised release based on finding that he possessed marijuana,
1
Although the docket sheets indicate that Pilier’s first name is “Ariasmendy,” the parties,
the record, and the Federal Bureau of Prisons website show that his name is “Arismendy.”
associated with a person engaged in criminal activity, and sold marijuana. On
appeal, Pilier argues that the district court improperly admitted an undercover
police officer’s hearsay statement at his revocation hearing that he sold marijuana,
and that this error was not harmless. After thorough review, we affirm.
We review a district court’s evidentiary decisions, as well as the revocation
of supervised release, for abuse of discretion. United States v. Novaton, 271 F.3d
968, 1005 (11th Cir. 2001) (evidentiary decisions); United States v. Frazier, 26
F.3d 110, 112 (11th Cir. 1994) (revocation of supervised release). We also review
the district court’s decisions regarding the kinds and form of information it will
consider at sentencing for abuse of discretion. United States v. Giltner, 889 F.2d
1004, 1008 (11th Cir. 1989). Erroneous evidentiary rulings are subject to harmless
error review. See Frazier, 26 F.3d at 114. We review a sentence imposed upon the
revocation of supervised release for reasonableness, under the abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 40-41, 51 (2007); United States v.
Sweeting, 437 F.3d 1105, 1106-07 (11th Cir. 2006).
The defendant, as the party challenging the reasonableness of the sentence,
bears the burden of establishing that the sentence is unreasonable in the light of
both the record and the § 3553(a) factors. United States v. Talley, 431 F.3d 784,
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788 (11th Cir. 2005).2 Under reasonableness review, we “must first ensure that the
district court committed no significant procedural error, such as failing to calculate
(or improperly calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the
chosen sentence -- including an explanation for any deviation from the Guidelines
range.” Gall, 552 U.S. at 51. Under 18 U.S.C. § 3583(e), a district court may,
after considering certain factors set forth in 18 U.S.C. § 3553(a) and upon finding
by a preponderance of the evidence that a defendant has violated a condition of
supervised release, revoke the term of supervised release and impose a term of
imprisonment. Sweeting, 437 F.3d at 1107.
“Although the Federal Rules of Evidence do not apply in supervised release
revocation hearings, the admissibility of hearsay is not automatic. Defendants
involved in revocation proceedings are entitled to certain minimal due process
requirements.” Frazier, 26 F.3d at 114. Among the due process requirements
available at a revocation hearing is the right to confront and cross-examine adverse
2
The § 3553(a) factors 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 to criminal conduct, to protect the public from further crimes of the defendant, and to
provide the defendant with training, medial care, or correctional treatment; (3) the Sentencing
Guidelines’ range; (4) pertinent Sentencing Commission policy statements; (5) the need to avoid
unwarranted sentencing disparities among similarly situated defendants with similar records; and
(6) the need to provide restitution to victims. See 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7).
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witnesses. Id.; see also Fed.R.Crim.P. 32.1(b)(2)(C) (stating before supervised
release is revoked, “[t]he person is entitled to . . . an opportunity to . . . question
any adverse witness unless the court determines that the interest of justice does not
require the witness to appear”). The right to cross examine adverse witnesses at a
revocation of supervised release hearing is not absolute; rather, “in deciding
whether or not 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.” Frazier, 26 F.3d at 114. Additionally, the hearsay
statement must be reliable. Id. However, where the properly considered evidence
is sufficient to support the district court’s conclusion, any error is harmless. Id.
To establish that the sentence imposed was harmful, Pilier must satisfy a
two-part test. “If admission of hearsay evidence has violated due process, the
defendant bears the burden of showing that the court explicitly relied on the
information. The defendant must show (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) (internal
quotations marks, citations, and emphasis omitted).
Moreover, hearsay may be admitted at sentencing if there are “sufficient
indicia of reliability, the [district] court makes explicit findings of fact as to
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credibility, and the defendant has an opportunity to rebut the evidence.” United
States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (quotations omitted).
“[T]he focus is upon the question of [the hearsay’s] reliability, which must be
determined on a case by case basis.” United States v. Lee, 68 F.3d 1267, 1275
(11th Cir. 1995). “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, 761 (11th Cir. 2000).
Here, there is no dispute that the court made no express finding about the
reliability of the hearsay statement or conduct under the required Frazier-balancing
test. Even if the court erred in this respect, however, there was sufficient evidence
to revoke Pilier’s supervised release, based, in part, on his admission that he
possessed marijuana and associated with someone engaged in a criminal activity.
Frazier, 26 F.3d at 114.
Regarding the resulting sentence, even if we assume, arguendo, that the
district court erred by not making reliability finding before relying on the hearsay
statements, remand is not necessary, because Pilier has not demonstrated that the
hearsay evidence was materially false or unreliable. Taylor, 931 F.2d at 847.
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Instead, it appears that, given the context of other testimony -- that Pilier was
driving the car, there was marijuana in the car, and there was a transaction of some
kind -- the hearsay statement that the exchange involved marijuana and that Pilier
directed the sale was reliable. Gordon, 231 F.3d at 761. Consequently, to the
extent the court erred by relying on hearsay evidence, either in revoking his
supervised release or in sentencing him, the error was harmless. Accordingly, we
affirm.
AFFIRMED.
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