United States v. Tremayne Nadatra Pace

Case: 17-11379 Date Filed: 08/04/2017 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 17-11379
Non-Argument Calendar
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D.C. Docket No. 5:03-cr-00054-MCR-3

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TREMAYNE NADATRA PACE,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Florida
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(August 4, 2017)

Before HULL, WILSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:

Tremayne Pace appeals the revocation of his supervised release, pursuant to

18 U.S.C. § 3583(e). He argues that the district court erred by relying on

false/unreliable hearsay statements to revoke supervised release and impose a

sentence.

We review the district court’s determination that a defendant violated the

terms of his supervised release for an abuse of discretion. United States v.

Copeland, 20 F.3d 412, 413 (11th Cir. 1994). A district court’s findings of fact in

a revocation hearing are reviewed for clear error. United States v. Almand, 992

F.2d 316, 318 (11th Cir. 1993). Clear error will be present when we are left with a

definite and firm conviction that a mistake has been committed. United States v.

Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005). “Where a fact pattern gives rise

to two reasonable and different constructions, the factfinder’s choice between them

cannot be clearly erroneous.” United States v. Almedina, 686 F.3d 1312, 1315

(11th Cir. 2012) (quotations omitted). We review de novo challenges to the

constitutionality of a defendant’s sentence. United States v. Chau, 426 F.3d 1318,

1321 (11th Cir.2005).

A court may revoke a defendant’s term of supervised release and impose a

prison sentence when it finds by a preponderance of the evidence that the

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defendant violated a condition of his supervised release. 18 U.S.C. § 3583(e)(3).

A district court is required to revoke supervised release for possession of a

controlled substance. 18 U.S.C. § 3583(g)(1). The Federal Rules of Evidence do

not apply in supervised-release revocation proceedings; so hearsay statements may

be admissible, provided certain minimal due-process requirements are met. United

States v. Frazier, 26 F.3d 110, 113–14 (11th Cir.1994). Hearsay is a statement

made by a declarant to prove the truth of the matter asserted in the statement. Fed.

R. Evid. 801(c). A “statement” may be either a person’s oral or written assertion,

and a “declarant” is the person who made the statement. Fed. R. Evid. 801 (a), (b).

Hearsay within hearsay will be admissible when both conform to the requirements

of a hearsay exception. Fed. R. Evid. 805. To comply with due-process

requirements, generally, before admitting hearsay testimony, the district 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.

A defendant has a due-process right not to be sentenced or have his

supervised release revoked based on false or unreliable evidence. See United

States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010) (concerning sentencing);

Frazier, 26 F.3d at 114 (concerning supervised release revocation). To prevail on

such a due-process challenge, “a defendant must show (1) that the challenged

evidence is materially false or unreliable and (2) that it actually served as the basis

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for the sentence.” Ghertler, 605 F.3d at 1269; see also United States v. Taylor,

931 F.2d 842, 847 (11th Cir. 1991) (applying this test to a probation revocation

hearing and analogizing such hearings to sentencing hearings); Frazier, 26 F.3d at

113-14 (“no significant conceptual difference between the revocation of probation

or parole and the revocation of supervised release”).

The district court did not err by relying on hearsay statements to revoke

supervised release and impose a sentence. The hearsay statement was admissible

at the revocation hearing when Pace had the opportunity to cross-examine the

hearsay declarants. Pace has not carried the burden to show that the hearsay

statement was false or unreliable or that the hearsay was the basis for the sentence.

About reliability, despite inconsistencies in some testimony, the statement was

made on the day of the event, and the statement was later confirmed as true. The

district court could credit it. Pace also failed to show that the hearsay statement

was the basis for the sentence; given the drug-related evidence and violations, Pace

would have been eligible for revocation and the same sentence without the hearsay

statement.

AFFIRMED.

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