IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-11230 September 7, 2007
Summary Calendar
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
STEVEN FLORES
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CR-114-7
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Steven Flores appeals the 18-month sentence imposed after revocation of
his supervised release. Flores argues that the district court violated his rights
under the Confrontation Clause when it allowed the Government to introduce
into evidence a positive urine test to show that Flores had used cocaine while on
supervised release. Flores argues, as he did in the district court, that the urine
test result was inadmissable because the Government failed to support the
result with an affidavit by “a responsible laboratory employee” as required by
*
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should not be published and is not precedent except under the limited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. 06-11230
United States v. Grandlund, 71 F.3d 507 (5th Cir. 1995), opinion clarified,
77 F.3d 811 (5th Cir. 1996).
“Alleged violations of the Confrontation Clause are reviewed de novo, but
are subject to a harmless error analysis.” United States v. McCormick, 54 F.3d
214, 219 (5th Cir. 1995). This court reviews a district court’s decision to revoke
a defendant’s supervised release for abuse of discretion. Id. As Flores’s pleaded
true to all but one of the charged violations of his supervised release, the district
court’s revocation of his supervised release was not an abuse of discretion. Id.
In Grandlund, we established mandatory procedures for revocation cases
in which there is a legitimate challenge to hearsay testimony regarding a
laboratory report. See id. at 511. These procedures include the requirement
that, in support of a laboratory report, the Government produce “an affidavit by
a responsible laboratory employee attesting to laboratory procedures, including
chain-of-custody routines, whether all required procedures were followed
regarding the subject sample(s), and the result(s) of the testing.” See id.
We have not defined the phrase “responsible laboratory employee” as it is
used in Grandlund. Regardless, any error in not requiring an affidavit by the
laboratory technician that actually tested Flores’s urine was harmless. Just as
testimony by the actual laboratory technician was deemed to be of little use to
the defendants in McCormick and Grandlund, testimony or an affidavit by the
laboratory technician that tested Flores’s urine would have been of little use to
Flores in this case. See Grandlund, 71 F.3d at 510-11; see also McCormick,
54 F.3d at 222-24.
Flores also argues that the district court provided no justification for
imposing a sentence above the recommended guidelines range and that his
sentence was therefore unreasonable. We review this challenge to Flores’s
sentence for plain error. See United States v. Hernandez-Martinez, 485 F.3d 270,
272 (5th Cir. 2007).
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No. 06-11230
We routinely uphold sentences imposed upon revocation of supervised
release so long as they not do exceed the statutory maximum. See United States
v. Weese, 199 Fed. Appx. 394, 396 (5th Cir. 2006) (citations omitted), cert. denied,
127 S. Ct. 1374 (2007). Flores’s 18-month sentence did not exceed the statutory
maximum. See 18 U.S.C. §§ 3559, 3583(e)(3). Because we have not yet required
district courts to expressly state their reasons for selecting a revocation
sentence, any such error could not now be plain. Accordingly, the district court’s
judgment is AFFIRMED.
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