Case: 16-10410 Document: 00513895304 Page: 1 Date Filed: 03/02/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10410 FILED
Summary Calendar March 2, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
BRIAN NOLLEY, also known as B-Nolley,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-174-15
Before REAVLEY, OWEN, and ELROD, Circuit Judges.
PER CURIAM: *
Brian Nolley appeals from the revocation of his supervised release and
the revocation sentence imposed pursuant to 18 U.S.C. § 3583(e)(3). On
appeal, Nolley argues that he was deprived of his due process right to
confrontation when the district court admitted hearsay evidence, consisting of
police reports and an unsworn out-of-court statement, at his revocation
hearing. Nolley concedes that plain error review applies because he did not
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-10410
raise this issue in the district court. See Puckett v. United States, 556 U.S. 129,
135 (2009). To prevail on plain error review, he must show a forfeited error
that is clear or obvious and affects his substantial rights. Id. Even if he makes
such a showing, this court will only correct the error if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings.” Id. (quoting
United States v. Olano, 507 U.S. 725, 736 (1993)).
Due process requires that a person in supervised release revocation
proceedings have “the right to confront and cross-examine adverse witnesses
(unless the hearing officer specifically finds good cause for not allowing
confrontation).” United States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995)
(quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972)). When determining
whether hearsay is admissible in revocation proceedings, the court “balances
the releasee’s interest in confronting a particular witness against the
government’s good cause for denying it.” United States v. Alaniz-Alaniz, 38
F.3d 788, 791 (5th Cir. 1994) (modification omitted) (quoting United States v.
Kindred, 918 F.2d 485, 486 (5th Cir. 1990)).
Assuming arguendo that the district court committed a clear or obvious
error when it failed to engage in the balancing test despite the lack of an
objection, Nolley has failed to establish that the asserted error affected his
substantial rights. See Puckett, 556 U.S. at 135. To make such a showing, “he
must demonstrate that [the error] ‘affected the outcome of the district court
proceedings.’” Id. (quoting Olano, 507 U.S. at 734). Nolley argues that the
error affected his substantial rights because it affected both the likelihood of
revocation and the length of his revocation sentence.
The revocation of supervised release is mandatory if the district court
finds that the defendant committed a Grade A or Grade B violation.
§ 3583(g)(1); U.S. SENTENCING GUIDELINES MANUAL § 7B1.3(a)(1) (U.S.
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No. 16-10410
SENTENCING COMM’N 2015). Nolley admitted to possession and use of
controlled substances––a Grade B violation for which revocation was
mandatory. § 3583(g)(1); see United States v. Jimison, 825 F.3d 260, 262 (5th
Cir. 2016). Even if revocation was not mandatory, see § 3583(d), the challenged
hearsay testimony was not the only evidence supporting revocation. See
McBride v. Johnson, 118 F.3d 432, 438 (5th Cir. 1997). Nolley has not shown
that the confrontation violations, if any, were “sufficient to undermine
confidence in the outcome.” United States v. Mares, 402 F.3d 511, 521 (5th Cir.
2005) (quoting United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).
Further, he “cannot demonstrate a reasonable probability that [his] sentence
would have been less” if he had been able to cross-examine the hearsay
declarants. United States v. Thompson, 548 F. App’x 200, 204 (5th Cir. 2013).
Finally, even if Nolley were able to show a plain error that affected his
substantial rights, he fails to establish that the error affected the fairness,
integrity, or public reputation of judicial proceedings. See Puckett, 556 U.S. at
135. Additionally, Nolley never refuted the subject statements in the district
court and does not directly refute them here. Therefore, the district court’s
judgment is AFFIRMED.
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