[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 10, 2009
No. 08-15563 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 97-00046-CR-1-MMP-AK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERNEST WALTER JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 10, 2009)
Before MARCUS, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Ernest Walter Johnson appeals his sentence of imprisonment for sixty
months, which was imposed after revocation of his supervised release. 18 U.S.C. §
3583(e)(3). Johnson argues that the district court erred by admitting hearsay
testimony at his revocation hearing; there was insufficient evidence to revoke his
supervised release; and the district court failed to explain the basis for its sentence.
We affirm.
I. BACKGROUND
In 1997, Johnson pleaded guilty to conspiracy to possess with the intent to
distribute cocaine base. 21 U.S.C. § 846. The district court sentenced Johnson to
96 months of imprisonment followed by five years of supervised release. Johnson
was released from prison in 2005.
In 2008, Johnson’s probation officer petitioned to revoke Johnson’s
supervised release on the ground that Johnson had committed a new crime. The
officer alleged that Johnson had been arrested for trafficking in cocaine. Johnson
denied the allegations.
At the revocation hearing, the government presented testimony from two
police officers regarding the drug transaction that led to Johnson’s arrest and
Johnson’s post-arrest statements to the officers. Ernest Hale, an investigator with
the Alachua County Drug Task Force, testified that in January 2008, a confidential
2
informant, Eugene Batie, reported that a person offered to sell him two ounces of
cocaine. Batie could not provide the person’s name, but he gave Investigator Hale
the tag number of the person’s Cadillac automobile. The Cadillac was owned by
Johnson, and Batie identified Johnson in a photographic lineup.
Investigator Hale testified that Batie agreed to make a controlled buy from
Johnson. Before the sale, Johnson called Batie to report he would be late. During
the call, which was monitored by law enforcement, Johnson told Batie that he
could sell only one and one-quarter ounces of cocaine. As Investigator Hale and
Detective Pat Penny watched from a distance, a person arrived at the transaction in
Johnson’s Cadillac and sold Batie 37.71 grams of a white powdery substance that
tested positive for the presence of cocaine both in a field test and under forensic
examination. After the transaction, Batie identified Johnson in a second
photographic lineup.
Investigator Hale testified that he later interviewed Johnson about the drug
transaction. Johnson admitted to Investigator Hale and Detective Penny that he
sold cocaine to Batie, and Johnson offered to assist authorities in future drug
operations. After the interview, Investigator Hale and Detective Penny
accompanied Johnson to his Cadillac that the officers recognized from the drug
transaction because of its distinctive spinning chrome rims. Johnson admitted that
3
he purchased the chrome rims with money made from a drug transaction.
On cross-examination, defense counsel questioned Investigator Hale about
Batie’s identification of Johnson. When defense counsel realized that Batie would
not testify at the hearing, defense counsel objected to Hale’s testimony on the
ground that “everything that this witness has said regarding any allegations by
another individual against my client[ is] a violation of Crawford v. Washington[,
541 U.S. 36, 124 S. Ct. 1354 (2004)].” After the district court overruled the
objection, defense counsel questioned Investigator Hale about excerpts from
Batie’s deposition to suggest that Batie guessed when he identified Johnson during
the photographic lineups. Hale responded that he did not instruct Batie to guess
during the selection process.
Detective Penny testified that the person who sold Batie the cocaine drove a
Cadillac with “after-market [chrome] rims,” and the detective was certain that the
vehicle was the same Cadillac that Johnson drove to his interview. Detective
Penny said he thought that Batie had selected Johnson’s photograph from the
lineup “before [Penny] had made contact[.]” Detective Penny stated that he did not
ask or hear Investigator Hale ask Johnson about the drug transaction, but the
detective recalled that Johnson was willing to cooperate and provided information
about other narcotics dealers.
4
The district court overruled Johnson’s motion to suppress. The district court
credited Investigator Hale’s testimony that Johnson sold cocaine to Batie, and the
court found that defense counsel had “put[] an emphasis on [Batie’s] answer” that
he recalled he had guessed when Batie was not asked squarely if he had guessed
when he identified the person who sold him drugs. The district court ruled that
Johnson “violated the terms and conditions of supervised release” and sentenced
Johnson to sixty months of imprisonment. The district court commented that it
imposed the maximum statutory term of imprisonment because “[i]t [didn’t] look
like” Johnson had “learned too much” when the court granted a downward
departure when it originally sentenced Johnson.
II. STANDARDS OF REVIEW
We apply several standards of review in this appeal. Objections or
arguments that are not raised in the district court are reviewed for plain error, and
to warrant relief, the error “must have been prejudicial: It must have affected the
outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725,
734, 113 S. Ct. 1770, 1778 (1993). We review a revocation of supervised release
for abuse of discretion and related questions of law de novo. United States v.
Frazier, 26 F.3d 110, 112 (11th Cir. 1994). We review a sentence imposed upon
revocation of supervised release for reasonableness. United States v. Sweeting,
5
437 F.3d 1105, 1106–07 (11th Cir. 2006).
III. DISCUSSION
Johnson raises three challenges to his revocation proceeding. First, Johnson
argues that the admission of hearsay testimony violated his rights of confrontation
and due process. Second, Johnson contends that the government failed to present
sufficient evidence to revoke his supervised release. Third, Johnson argues for the
first time on appeal that the district court failed to “consider the sentencing factors
in 18 U.S.C. § 3553(a).” We address each argument in turn.
The district court did not err when it permitted Investigator Hale to testify
that Batie had identified Johnson as the person who sold him cocaine. Although
Johnson failed to object to Investigator Hale’s testimony as hearsay, we have ruled
that hearsay is admissible in revocation hearings. United States v. Frazier, 26 F.3d
110, 113–14 (11th Cir. 1994). The district court did not plainly err when it
admitted the hearsay because there was “significant indicia” to find the information
was reliable: the officers seized cocaine from Batie after the drug transaction;
Investigator Hale and Detective Penny saw Johnson’s Cadillac during the drug
transaction; and Johnson admitted he sold cocaine to Batie. See United States v.
Castellanos, 904 F.2d 1490, 1495 (11th Cir. 1990) (“[A] court may consider [at a
sentencing hearing] any information, including reliable hearsay, regardless of the
6
information’s admissibility at trial, provided that there are sufficient indicia of
reliability to support its probable accuracy.”).
The district court did not abuse its discretion by revoking Johnson’s
supervised release. The district court was entitled to credit the testimony of the
officers that Batie had identified Johnson as the seller, the seller drove Johnson’s
vehicle, and Johnson had admitted that he sold the cocaine. See United States v.
Clay, 483 F.3d 739, 744 (11th Cir. 2007). The record supported the finding of the
district court that Johnson violated a term of his supervised release.
No error occurred when the district court imposed Johnson’s sentence. As
Johnson admits in his brief, the district court was not required to consider the
sentencing factors because Johnson violated the condition of his supervised release
that he not possess illegal drugs. 18 U.S.C. § 3583(g)(1); United States v. Brown,
224 F.3d 1237, 1242 (11th Cir. 2000). The district court did not abuse its
discretion when it concluded that the maximum term of imprisonment was
necessary to punish Johnson’s continued criminal conduct. See 18 U.S.C. §
3553(a).
IV. CONCLUSION
The revocation of Johnson’s supervised release and sentence are
AFFIRMED.
7