[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 3, 2006
No. 05-13981 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 88-04040-CR-4-WS-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES WOODEN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 3, 2006)
Before TJOFLAT, CARNES and WILSON, Circuit Judges.
PER CURIAM:
James Wooden appeals the district court’s revocation of his supervised
release and imposition of a 60-month term of imprisonment. Wooden contends
that the district court erred when it found that he committed three violations of the
mandatory conditions of his supervised release based on evidence admitted in
violation of his confrontation and due process rights and Shepard v. United States,
544 U.S. 13, 125 S. Ct. 1254 (2005). Wooden also contends that the district court
abused its discretion by imposing the statutory maximum term of imprisonment
rather than a term within the advisory guideline range.
We review the district court’s revocation of supervised release for abuse of
discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). A district
court may “revoke a term of supervised release . . . if the court . . . finds by a
preponderance of the evidence that the defendant violated a condition of
supervised release.” 18 U.S.C. § 3583(e)(3). Revocation is mandatory if the
defendant violated a condition of supervised release by possessing a controlled
substance. Id. § 3583(g).
Wooden’s first argument is that the district court erred in relying on
evidence that was presented in violation of Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354 (2004), because he did not have an opportunity to confront the
witnesses against him. Wooden did not raise this objection in the district court, so
it will be reviewed only for plain error in this Court. United States v. Olano, 507
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U.S. 725, 731–32, 113 S. Ct. 1770, 1776 (1993). Under the plain error standard
Wooden must show that: (1) there was an error, (2) that was plain, (3) that affected
his substantial rights, and (4) that seriously affected the fairness of the proceeding.
United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003).
There was no plain error under Crawford v. Washington. The right to
confrontation is a trial right, and this Court has held that it does not apply to non-
capital sentencing. United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir.
2005) (recognizing that “we repeatedly have concluded that a district court may
use reliable hearsay at sentencing”). Neither this Court nor the Supreme Court has
extended Crawford to revocation proceedings. Other Circuits considering this
issue have declined to apply Crawford to revocations of supervised release or
probation. See, e.g., United States v. Rondeau, 430 F.3d 44, 47–48 (1st Cir. 2005);
United States v. Hall, 419 F.3d 980, 985–86 (9th Cir. 2005), cert. denied, 126 S.
Ct. 838 (2005); United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005); United
States v. Aspinall, 389 F.3d 332, 342–43 (2d Cir. 2004); abrogated on other
grounds, United States v. Fleming, 397 F.3d 95 (2d Cir. 2005); United States v.
Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004). Therefore, if there was any error it
certainly was not plain. See United States v. Chau, 426 F.3d 1318, 1323 (11th Cir.
2005) (holding that there cannot be plain error “[i]n the absence of any controlling
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precedent supporting the proposition that there was error”).
Wooden’s second argument is that his due process rights were violated
because the district court admitted hearsay without first conducting the inquiry
required by United States v. Frazier, 26 F.3d 110 (11th Cir. 1994). In Frazier we
held that in supervised release revocation hearings when deciding whether 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.” Id. at 114. However, in Frazier the defendant objected at his
sentencing hearing to the admission of hearsay, whereas Wooden raised no hearsay
objection to the testimony. Id. at 112. At least one court has held that the
balancing test is not required where the defendant fails to object. United States v.
Stanfield, 360 F.3d 1346, 1359-60 (D.C. Cir. 2004). We agree with that approach.
On this record we have no way of knowing what grounds the government would
have asserted for denying confrontation, because without an objection by the
defendant the government had no reason or opportunity to assert these grounds and
the district court had no opportunity to review them. Because the defendant failed
to object, we will review the admission of the hearsay evidence only for plain
error.
The district court may consider hearsay in a supervised release revocation
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hearing if the hearsay is proven to be reliable. United States v. Stephenson, 928
F.2d 728, 732 (6th Cir. 1991); see also Frazier, 26 F.3d at 114. Wooden does not
argue that any of the hearsay testimony or evidence at issue here was not reliable.
He offers no basis for finding that the district court plainly erred in finding the
hearsay to be reliable. This contention, like Wooden’s first one is without merit.
Wooden also claims that the admission of certain evidence with respect to
the violations based on his conduct in Georgia violated Shepard v. United States,
544 U.S. 13, 125 S. Ct. 1254 (2005), because the charges arising from those
violations were dismissed in state court. Although Wooden did not specifically
cite Shepard, he did object in the district court on the basis that those matters were
dismissed in the state court action. Therefore, we will decide the question of
whether Shepard applies de novo. Frazier, 26 F.3d at 112 (questions of law in
supervised release revocation proceedings subject to de novo review). In Shepard
the Supreme Court held that courts are limited to the statutory definition, charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented when determining
the character of a prior offense for purposes of the Armed Career Criminal Act.
Shepard, 544 U.S. at __, 125 S. Ct. at 1257. Shepard involved an interpretation of
the Armed Career Criminal Act and it does not apply to the present case. See id.;
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Cf. 18 U.S.C. § 3583(e)(3) (court may revoke a term of supervised release if it
“finds by a preponderance of the evidence that the defendant violated a condition
of supervised release”).
Wooden has not established that the district court’s admission of evidence at
the revocation hearing was in error, thus he cannot establish that the revocation of
his supervised release based on violations of mandatory conditions was reversible
error. The testimony at the revocation hearing supported the district court’s
findings as to all three violations of mandatory conditions, and the district court did
not err in revoking Wooden’s supervised release.
Wooden also contends that the district court should have imposed a sentence
within the guidelines range instead of the statutory maximum. Wooden did not
object to the district court’s decision to exceed the advisory guidelines range and
so we review this decision for plain error. United States v. Aguillard, 217 F.3d
1319, 1320 (11th Cir. 2000).
The district court did not plainly err by imposing a sentence above the
guideline range. The chapter 7 guidelines are advisory and it is sufficient if “there
is some indication the district court was aware of and considered them.” Id. The
district court noted and considered the relevant Guidelines range but found that it
was inadequate under the circumstances based on the seriousness and extent of
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Wooden’s conduct. The 60-month sentence the district court imposed did not
exceed the statutory maximum. There was no error.
The district court’s revocation of supervised release and imposition of a 60-
month term of imprisonment is
AFFIRMED.
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