IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 5, 2009
No. 08-10423
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TIMOTHY JAY KING
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:05-CR-59-ALL
Before SMITH, STEWART and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Timothy Jay King originally pleaded guilty to passing counterfeit postal
money orders and was sentenced to 12 months of imprisonment and three years
of supervised release. The Government subsequently filed a motion to revoke
supervised release. After a preliminary and a final revocation hearing, the
district court found that King violated a condition of his supervised release by
possessing cocaine. The district court also found that King violated the condition
of his supervised release by failing to participate fully in the substance abuse
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 08-10423
treatment program at the V.A. Hospital and revoked King’s supervised release.
The district court sentenced King to 24 months of imprisonment and one year
of supervised release.
King argues that the district court plainly erred in considering probation
officer Joe King’s hearsay testimony regarding the revocation of his medical
release. He argues that the consideration of the hearsay likely affected the
district court’s finding that he had failed to participate fully in the treatment
program and clearly affected the district court’s decision to sentence him above
the advisory guideline range.
King did not object to the use of hearsay testimony, and so review is for
plain error. See United States v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994).
The revocation of supervised release implicates fundamental liberty interests
and entitles the releasee to the procedural due process protections set forth in
Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972). See Gagnon v. Scarpelli, 411
U.S. 778, 782-86 (1973); FED. R. CRIM. P. 32.1(b)(2). King’s argument focuses on
the balancing test employed by this court in determining whether confrontation
of a witness at a revocation hearing is required. A defendant in a supervised
release revocation proceeding has the right to confront and cross-examine
adverse witnesses unless the district court specifically finds, after applying a
balancing test, that there is good cause for not allowing confrontation. United
States v. McCormick, 54 F.3d 214, 221 (5th Cir. 1995).
King admitted and pleaded true to the allegation that he possessed and
used cocaine on numerous occasions. If a defendant on supervised release
possesses a controlled substance during the period of supervised release, the
district court is required to revoke supervised release and impose a term of
imprisonment. 18 U.S.C. § 3583(g); McCormick, 54 F.3d at 219 n.5. Based on
King’s guilty plea to violating this condition of supervised release, the district
court was required to revoke supervised release, regardless of the admission of
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No. 08-10423
hearsay testimony relating to another condition, and making the balancing test
irrelevant.
As for the sentence, the district court listed several reasons for imposing
a term of imprisonment above the advisory guideline range of 6 to 12 months of
imprisonment: that King had not paid his fine, had not paid his restitution, had
continued to use drugs, had “played games” with regard to the drug program,
and did not take the court’s orders seriously. King himself testified that he
revoked his medical release and that his original probation officer, Chris Dobbe,
had told him that this was not proper. Additionally, the district court had heard
the testimony of Dobbe at the preliminary hearing, at which time King had the
opportunity to cross-examine Dobbe about the circumstances surrounding the
signing and revoking of King’s medical release. King has not shown plain error.
See Alaniz-Alaniz, 38 F.3d at 791-92.
AFFIRMED.
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