Case: 21-20056 Document: 00515939727 Page: 1 Date Filed: 07/15/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 15, 2021
No. 21-20056 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Joshua Louis Little,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CR-433-1
Before Clement, Haynes, and Wilson, Circuit Judges.
Per Curiam:*
Joshua Little appeals the revocation of his supervised release and
resulting sentence of 12-months’ incarceration on the grounds that: (1) he
was denied the opportunity to confront witnesses against him without good
cause; and (2) his sentence is procedurally unreasonable. Finding that Little
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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failed to object on confrontation grounds and that the district court did not
impose a procedurally unreasonable sentence, we AFFIRM.
I.
Little was convicted of willfully injuring or committing a depredation
against property of the United States, resulting in damage less than $1,000.
The district court sentenced him to time served (approximately 11 months),
one year of supervised release, and a $25 special assessment. His conditions
of release included a standard condition that he not knowingly leave the
judicial district in which he was “authorized to reside”—the Southern
District of Texas—“without first getting permission from the court or the
probation officer.” Shortly after his conviction, Little was accused of leaving
the Southern District of Texas and travelling to Washington, D.C. The
Government subsequently sought to revoke his supervised release.
At his revocation hearing, the Government called Federal Probation
Officer Laurie Ulsh to testify. Ulsh explained that Little previously
requested to travel to Washington, D.C. to attend a funeral, but she had
responded that—without further information—she would have to deny the
request. According to Ulsh, Little did not follow up, so he never received
permission to travel.
Nonetheless, Ulsh testified that she received a voicemail soon
thereafter from Secret Service Agent Aaron Barbosa informing her that he
had encountered Little outside the White House. Between the voicemail and
a follow-up phone call, Agent Barbosa informed Ulsh that he had received a
tip from a cab driver that Little had “said something about C4 in the White
House.” Barbosa interviewed Little, who claimed to have said “Greg 4.”
Agent Barbosa told Ulsh that he then called Little’s father, who confirmed
that Little was expected to return to Houston later that day and that he “left
with no bags and just the clothes on his back.” Little was released after
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questioning; according to Ulsh, “they questioned him just long enough to
run his name.”
Ulsh’s testimony was the only evidence introduced at the hearing. All
statements attributed to Agent Barbosa were based on his conversations with
Ulsh (hearsay), and any statements attributable to Little’s father were based
on Agent Barbosa having relayed them to Ulsh (double hearsay). At the
outset of Ulsh’s testimony, Little’s attorney “object[ed] to any hearsay being
admitted through this witness.” The district court did not respond directly
to the objection; rather, it permitted Ulsh to continue testifying.
At the conclusion of Ulsh’s testimony, Little’s attorney reiterated
that all “we have is . . . hearsay within hearsay.” In response, the district
court reminded Little’s attorney that it was “not restricted [by] the rules of
evidence for [a revocation] proceeding.” Little’s attorney conceded the
point but refined his objection, stating:
There are a whole lot of unknowns here. The point is we don’t
have independent verification. We don’t have travel
information. We don’t have flights. We don’t have a picture.
We don’t have a driver’s license up there. It’s all very weak
evidence, is my point, Your Honor. And so I would ask the
Court to find that there is no violation.
Following counsel’s argument, Little briefly addressed the court saying only,
“I didn’t go to D.C. and that information is incorrect, so I plead not guilty to
this.”
After hearing testimony and argument, the district court found that
Little violated the terms of his supervised release and sentenced him to the
statutory maximum of twelve months imprisonment in a mental health
facility. This appeal followed.
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II.
“A district court may revoke a defendant’s supervised release if it
finds by a preponderance of the evidence that a condition of release has been
violated.” United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995).
When facing potential revocation, defendants are protected by the Fifth
Amendment’s guarantee of due process, which, while not as absolute as the
Sixth Amendment’s Confrontation Clause guarantee, requires that
revocation defendants “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. Williams, 847 F.3d 251, 253
(5th Cir. 2017) (quoting McCormick, 54 F.3d at 221). 1
A.
We first determine our standard of review. We generally review the
revocation of a defendant’s supervised release for abuse of discretion.
McCormick, 54 F.3d at 219. We review challenges concerning due process
confrontation rights, on the other hand, “de novo, but [] subject to a harmless
error analysis.” Id.; see also United States v. Minnitt, 617 F.3d 327, 332 (5th
Cir. 2010) (same). But the Government argues that neither abuse of
discretion nor de novo review applies here. Instead, according to the
Government, we should review for plain error because Little failed to object
on confrontation grounds. We agree.
1
Little primarily invokes Fed. R. Crim. P. 32.1(b)(1)(B)(iii), which guarantees
to defendants, “upon request, an opportunity to question any adverse witness, unless the
judge determines that the interest of justice does not require the witness to appear.” This
court has not, to our knowledge, differentiated excusing confrontation “in the interest of
justice” from doing so for “good cause.” See United States v. Alvear, 959 F.3d 185, 192–94
(Oldham, J., concurring) (“Maybe ‘good cause’ and the ‘interest of justice’ are the same
thing. Maybe they’re different.” (internal citations omitted)). We have no occasion here
to resolve any possible distinction between the standards.
4
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“To preserve error, an objection must be sufficiently specific to alert
the district court to the nature of the alleged error and to provide an
opportunity for correction.” United States v. Neal, 578 F.3d 270, 272 (5th
Cir. 2009). Put another way, an objection must be specific and clear to
preserve error, id. at 273, not general and “far removed from the testimony
at issue . . . .” United States v. McDowell, 973 F.3d 362, 366 (5th Cir. 2020).
Little does not satisfy this standard.
At his revocation hearing, Little objected to the admission of
hearsay—the introduction of Agent Barbosa’s statements through Ulsh—
twice: once at the beginning of Ulsh’s testimony and once at the conclusion
of her testimony. At no point, however, did Little raise his right to confront
Agent Barbosa. Nevertheless, Little would have us transform his hearsay
objection into a confrontation objection. According to Little, our statement
in McDowell, that “McDowell concedes that he made neither a hearsay nor a
due process objection,” 973 F.3d at 366, serves as the predicate to convert a
hearsay objection into a confrontation objection. Not so. It is indeed true
that hearsay presents a “two-fold” problem—reliability and confrontation.
Farrish v. Miss. State Parole Bd., 836 F.2d 969, 978 (5th Cir. 1988). But we
have never held that merely claiming “hearsay” suffices to preserve a
confrontation issue. On the contrary, at least one panel of this court has
distinguished between an objection based on hearsay and an objection
explicitly calling for the right to confront adverse witnesses. See United States
v. Mendoza, 414 F. App’x 714, 718 (5th Cir. 2011) (unpublished, per curiam).
Little’s objection challenged the “unknowns” in Ulsh’s testimony, including
travel information, flights, pictures, driver’s licenses, and other
“independent verification.” It is readily apparent that his objection to the
Government’s “weak evidence” concerned the reliability of Ulsh’s
testimony, not his right to confrontation. Accordingly, a plain error standard
applies.
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B.
To establish plain error, Little must satisfy three prongs. “First, there
must be an error that has not been intentionally relinquished or abandoned.
Second, the error must be plain—that is to say, clear or obvious. Third, the
error must have affected the defendant’s substantial rights . . . .” United
States v. Mims, 992 F.3d 406, 409 (5th Cir. 2021) (quoting Molina-Martinez
v. United States, --- U.S. -----, 136 S. Ct. 1338, 1343 (2016) (internal citation
omitted)). If Little “can satisfy those three prongs, then we ‘ha[ve] the
discretion to remedy the error—discretion which ought to be exercised only if
the error seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. (quoting Puckett v. United States, 556 U.S. 129, 135
(2009)).
Ordinarily, a district court determining whether to admit hearsay
evidence in a revocation hearing should “employ a balancing test in which [it
weighs] ‘the [defendant’s] interest in confronting a particular witness against
the government’s good cause for denying it . . . .” McCormick, 54 F.3d at 221
(quoting United States v. Kindred, 918 F.2d 485, 486 (5th Cir. 1990)). Yet,
the defendant must affirmatively invoke the right to confront witnesses. See,
e.g., McDowell, 973 F.3d at 365–66 (“There is no authority requiring a specific
good-cause finding in the absence of an objection. On the contrary, the
limited persuasive authority available indicates district courts are not
required to make such a finding sua sponte.”(italics omitted)) (collecting
cases); Fed. R. Crim. P. 32.1(b)(1)(B)(iii) (requiring defendants be given
an opportunity to question adverse witnesses only “upon request”). Absent
invocation, as is the case here, the district court had no reason to sua sponte
raise a “good cause” inquiry; therefore, the court did not plainly err. See id.
at 366; see also Mendoza, 414 F. App’x at 718 (“Given that [Appellant] cannot
supply any precedent requiring a sua sponte balancing, we cannot say that the
error—if any—was plain.”).
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III.
Little also avers that his sentence is procedurally unreasonable.
Because he failed to object to the reasonableness of his sentence at his
revocation hearing, we again review for plain error. See Mims, 992 F.3d at
409.
Little first asserts that the district court erred when it did not consider
the Sentencing Guidelines’ policy statement. The Government concedes
that any consideration of the Guidelines is absent from the record.
Accordingly, Little “must show a reasonable probability that, but for the
error, the outcome of the proceeding would have been different.” Mims, 992
F.3d at 409 (quoting Molina-Martinez, 136 S. Ct. at 1343). 2 Little fails to do
so. Even assuming arguendo that Little meets this burden, however, we
decline to exercise our discretion by reversing the court’s sentence.
“Relief under the fourth prong is wholly discretionary.” Id. at 410
(citation omitted). To that end, the fourth prong—whether to remedy the
error—is applied on a case-specific, fact-intensive basis that depends upon
“the degree of the error and the particular facts of the case.” Id. (citation
omitted). A review of the record supports our decision to not exercise our
discretion. Little’s revocation hearing evinces that he is no respecter of the
law. Ulsh’s testimony revealed that Little requested leave to travel to
Washington, D.C. After his request was denied, and with full knowledge of
the conditions of his supervised release—which were handed down not even
two months prior—Little traveled outside the Southern of District of Texas
anyway. The district court explicitly found this evidence against Little—
2
While Mims concerned the application of an incorrect Guideline range, 992 F.3d
at 411, rather than a failure to consider the Guidelines on the record, the holding is
nonetheless instructive.
7
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including Ulsh’s testimony that Little’s name was flagged in the Atlas
System as having been run by law enforcement—to be “credible.” The
court, aware of these facts, imposed a statutory maximum sentence three
months above the advisory range. And, while the “possibility of additional
jail time . . . warrants serious consideration,” Rosales-Mireles v. United States,
--- U.S. ----, 138 S. Ct. 1897, 1907 (2018), the imposition of an above-range
sentence is supported by the record; namely, the sentence is supported by
Little’s intransigence. See Mims, 992 F.3d at 410–11, n.4. Without more, we
decline to disturb the district court’s ruling. 3
Next, Little claims that the court erred by not providing a sufficient
statement of reasons in support of the sentence. While we are again
disappointed by the brevity of the district court’s explanation in support of
the sentence, we still find no plain error. The facts before the district court
were simple: (1) Little was convicted of an offense pursuant to 18 U.S.C.
§ 1361; (2) as a result, he was sentenced to, inter alia, time served followed
by a one-year term of supervised release; (3) Little agreed to abide by the
conditions of his supervised release, which included not leaving the Southern
District of Texas without prior approval; and (4) Little left the Southern
District of Texas despite his probation officer denying his request. The
district court was aware of this record, summarized it—albeit, briefly—
before imposing a sentence, and thus provided the requisite explanation
before sentencing. See Rita v. United States, 551 U.S. 338, 357–58 (2007).
And Little fails to show that any error affected his substantial rights. See
3
The district court’s approach to creating a record bears mentioning. We have
repeatedly instructed courts to discharge their duties by making appropriate findings on the
record. See, e.g., McCormick, 54 F.3d at 220 & n.7. Counsel, defendants, the public, and
this court rely on such records to ensure that justice is properly meted out. The district
court is accordingly instructed to fulfill its obligations in the future by properly making
record findings and conclusions.
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Mims, 992 F.3d at 409. Furthermore, even if the district court erred in not
providing an adequate explanation of its decision, the same reasons discussed
in response to Little’s first procedural objection counsel us against exercising
our discretion again. See Mims, 992 F.3d at 409.
Finally, Little argues that the court failed to comply with Rule 32.1 of
the Federal Rules of Criminal Procedure by not allowing him to make a
mitigation argument. Pursuant to Rule 32.1(b)(2)(E), Little was entitled to
“an opportunity to make a statement and present any information in
mitigation” at his revocation hearing. Despite Little’s protestation, he
received the very opportunity that Rule 32.1 demands. To be sure, the court
invited Little’s attorney to argue on his behalf and Little, himself, was
granted the opportunity to say “anything on [his] own behalf.”
Consequently, the district court did not plainly err.
IV.
Because we find that the district court neither denied Little his
confrontation rights nor imposed a procedurally unreasonable sentence, we
AFFIRM.
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Haynes, Circuit Judge, concurring:
I concur in Sections I and II and in the holding of Section III of the
majority opinion. I write to explain more fully my joinder in the
determination not to grant plain error relief on Little’s challenge to the
procedural reasonableness as to the sentence. In addressing the corollary
area of sentencing guidelines (this case, of course, involves policy
statements), the Supreme Court has made clear that in cases where the
guidelines are improperly calculated, prong 3 of plain error review will
usually be met, and discretion should usually be exercised to address the
error. See Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016);
Rosales-Mireles v. United States, 138 S. Ct. 1897, 1906–09 (2018). Thus, if
that were the case here, I might conclude differently about our exercise of
discretion.
However, this case involves a silent record, not a record of an
erroneous calculation. At the revocation hearing, the parties and the district
court simply did not discuss the policy statement range for Little’s
supervised release violation. Unlike the complex calculation of many
sentencing guidelines, here it was quite clear what the policy statement range
would be for this violation: it was clearly a Grade C violation (specifically, a
violation of the “condition of supervision” that Little not leave the Southern
District of Texas without authorization) and Little’s PSR from his original
crime (which was sentenced not long before this hearing) demonstrated that
he had a criminal history category of I. See U.S. Sent’g Guidelines
Manual § 7B1.1(a)(3) (U.S. Sent’g Comm’n 2018). It was thus easy
enough for the experienced district judge to know the policy statement range
of 3-9 months. See id. § 7B1.4. The fact that the relevant range was not
specifically mentioned at the hearing is not proof that the district court
applied the wrong range or that the applicable range was unknown.
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Accordingly, it is not at all clear to me that prongs 1 and 2 of plain error review
are met.
Even if we determine that, because the Government did not challenge
those prongs, we should reach prongs 3 and 4, the lack of an actual error in
calculation demonstrates to me that the usual rules of Molina-Martinez and
Rosales-Mireles are not in play here. Accordingly, I join in the determination
to deny relief on this claimed plain error.
11