United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 7, 2007
Charles R. Fulbruge III
Clerk
No. 06-41563
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
METOYER HUGHES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:03-CR-16-ALL
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Before REAVLEY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Metoyer Hughes appeals the district court’s judgment
revoking his supervised release and the imposition of a 24-month
sentence to run consecutively to any state sentence. Finding no
error, we affirm.
Hughes pleaded true to three violations of his supervised
release conditions but contested the two revocation charges based
on state law offenses. For the first time, Hughes contends that
he was denied his right to confront and question adverse
witnesses when the district court allowed Sgt. Richard Morales to
*
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this opinion should not be published and is not precedent except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.
No. 06-41563
-2-
testify regarding information he received from a confidential
informant. That information led to a search of an apartment and
ultimately to Hughes’s arrest on state charges of possession of a
controlled substance with intent to distribute in a drug-free
zone and three counts of child endangerment. These state charges
formed the basis of the two contested supervised release
violations.
Hughes asserts that before allowing Sgt. Morales to testify
regarding the confidential informant’s statements, the court was
required to conduct a balancing test to determine whether there
was good cause for not requiring the informant to testify. See
United States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995)
(setting out test). As Hughes concedes, because he did not
object to Sgt. Morales’s testimony on this basis in the district
court, our review is limited to plain error, which requires a
showing of error that is clear or obvious and affects substantial
rights. See United States v. Alaniz-Alaniz, 38 F.3d 788, 791
(5th Cir. 1994). Even if all three prongs are met, we will not
exercise our discretion to correct the error unless the error
seriously affects the fairness, integrity, or public reputation
of judicial proceedings.
We need not decide whether the district court’s failure to
conduct the balancing test sua sponte constitutes clear or
obvious error as we are satisfied by our review of the record
that any error there may have been did not affect Hughes’s
No. 06-41563
-3-
substantial rights. First, whether Hughes would have prevailed
if the court had conducted the balancing test is speculative at
best. In any case, even without the contested hearsay testimony,
there was sufficient other evidence to find that Hughes committed
the state drug and child endangerment offenses for purposes of
revocation.
Independent evidence, including an insurance policy for
Hughes’s motorcycle listing the apartment as his address,
photographs of Hughes at the apartment, and Sgt. Morales’s own
observations of Hughes and his vehicles at the apartment complex,
established that Hughes lived at the apartment in question.
Quantities of cocaine and marijuana were found in the apartment
along with a firearm, ammunition, and measuring equipment.
Further, Hughes’s minor children were in the apartment alone and
unsupervised. Under the applicable preponderance of the evidence
standard, see 18 U.S.C. § 3583(e)(3), the evidence supported the
district court’s determination that Hughes violated the subject
conditions of supervised release. Accordingly, Hughes has failed
to demonstrate that any error there may have been in allowing the
hearsay testimony without conducting the required balancing test
affected his substantial rights. See United States v. Olano, 507
U.S. 725, 734 (1993); United States v. Mares, 402 F.3d 511, 521
(5th Cir. 2005).
Hughes also argues that the district court erred in ordering
that his sentence run consecutively to any as-yet-unimposed
No. 06-41563
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sentence in the state proceedings. Again, we review for plain
error. As Hughes concedes, his argument is foreclosed by United
States v. Brown, 920 F.2d 1212, 1217 (5th Cir. 1991). He raises
the issue here only to preserve it for possible further review.
For the foregoing reasons, the judgment of the district
court is AFFIRMED.