United States v. John Jeffery Carr

Case: 13-11025 Date Filed: 07/29/2014 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 13-11025

Non-Argument Calendar

D.C. Docket No. 8:01-cr-00046-SDM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOHN JEFFERY CARR,

Defendant-Appellant.

Appeal from the United States District Court for

the Middle District of Florida

(July 29, 2014)

Before HULL, MARCUS and FAY, Circuit Judges.

PER CURIAM:

Case: 13-11025 Date Filed: 07/29/2014 Page: 2 of 13

John Carr appeals the revocation of his supervised release and imposition of

a 36-month sentence, pursuant to 18 U.S.C. § 3583(e). After review of the record

and the parties’ briefs, we affirm.

I. BACKGROUND

A. Conviction and Sentence

In 2001, Carr pled guilty to possession with intent to distribute crack cocaine

in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), a class B felony. Carr

received a 92-month sentence, followed by 60 months of supervised release. After

completing his term of incarceration, Carr began his term of supervised release.

B. First Petition for Revocation

Carr violated the terms of his supervised release several times. As a result,

in March 2012, the probation officer filed a petition to revoke Carr’s supervised

release. The petition alleged that Carr violated the terms of his supervised release

in eight ways: (1) using marijuana illegally; (2) failing to notify the probation

officer within 72 hours after being arrested or questioned by a law enforcement

officer; and (3) being convicted of six new crimes (driving with a suspended or

2

Case: 13-11025 Date Filed: 07/29/2014 Page: 3 of 13

revoked license (four times), possessing more than one Florida driver’s license,

and not having a valid driver’s license). 1

C. First Revocation Hearing

On October 1, 2012, the district court held a revocation hearing. At that

hearing, Carr admitted to committing the eight violations alleged in the probation

officer’s petition.

After hearing from the prosecutor, defense counsel, the probation officer,

and Carr, the district court decided not to revoke Carr’s supervised release at that

time. Instead, the district court offered Carr “a bit of a deal.” In exchange for

Carr’s word that he could complete the remaining term of his supervised release

“uneventfully,” the district court agreed to “extend [Carr] that opportunity.” The

district court warned Carr, however, that he could “bet on” being incarcerated if he

was brought before the court for further violations of the terms of his supervised

release.

The district court continued the revocation hearing.

1

The government withdrew one additional alleged supervised-release violation for

driving with a suspended license.

3

Case: 13-11025 Date Filed: 07/29/2014 Page: 4 of 13

D. Amended Petition for Revocation

Approximately seven weeks later, on November 18, 2012, Carr violated the

terms of his supervised release by breaking into his ex-girlfriend’s home through a

window, battering her, and damaging her phone when she tried to call for help.

Based on these acts, the probation officer amended the petition to revoke

Carr’s supervised release by adding three new violations. The amended petition

alleged that Carr violated his supervised release by engaging in three types of

criminal conduct, namely: (1) burglary of a dwelling, (2) domestic violence

battery, and (3) criminal mischief.

E. Second Revocation Hearing

On February 28, 2013, the district court resumed the revocation hearing that

was continued in October 2012. Carr pled “not true” to the three supervised

release violations that were predicated on his November 2012 conduct.

The district court conducted a lengthy, evidentiary hearing to determine

whether Carr violated the terms of his supervised release. In that hearing, several

witnesses to the November 2012 burglary and battery testified: the victim (Carr’s

ex-girlfriend and the owner of the home that Carr entered by force), the victim’s

friend (who was present during the November 2012 break-in), the responding

police officer, and a 911 dispatch officer.

4

Case: 13-11025 Date Filed: 07/29/2014 Page: 5 of 13

Shereka Watson, the victim and Carr’s ex-girlfriend, testified that Carr

kicked in a window air conditioning unit in her home’s living room; entered her

home through that window; went to her bedroom; “rough[ed] [her] up” by

grabbing her, shaking her, and throwing her on the bed; yelled and cussed at her;

and when she tried to call 911, grabbed her phone and threw it on the floor.

Watson’s friend offered substantially similar testimony.

The responding police officer testified that, on the day of the incident,

Watson and her friend made statements consistent with their courtroom testimony.

And, the government offered Watson’s sworn, written statement, which she

prepared for the police officer on the date of the incident. Watson’s written

statement also corroborated the testimony presented at the hearing.

The 911 dispatch officer testified that her office received a call from Watson

stating that Carr had kicked in a window air conditioning unit, entered Watson’s

residence, “jumped” on her, and fled the scene. A 911 call log, made

contemporaneously with that call, substantially corroborated this testimony.

The government moved to admit a recording of the 911 call into evidence.

Carr objected on the grounds that that the 911 call was unreliable hearsay because

it was made after Carr left Watson’s residence and, therefore, there was no ongoing

emergency to render the statements in the call reliable. The district court admitted

5

Case: 13-11025 Date Filed: 07/29/2014 Page: 6 of 13

the 911 call, stating that the call was “comfortably within the realm of sufficiently

reliable” evidence. The 911 call was consistent with the other testimony and

evidence presented at the hearing.2

After considering all of the evidence relating to the November 2012

incident, the district court found that the government had proven by a

preponderance of the evidence that Carr committed the three contested violations:

burglary of a dwelling, domestic violence battery, and criminal mischief.

F. Probation Officer’s Violation Report

In February 2013, the probation officer prepared a probation violation report

that (1) outlined the procedural history in Carr’s case; (2) described Carr’s

supervision history, including his supervised release violations; and (3) provided

the district court with sentencing options based on statutory provisions and

guidelines calculations. As set forth in that report, Carr’s criminal history category

at the time of his original sentencing was VI. This history included five scored

offenses that included multiple convictions for possessing and selling cocaine and

resisting arrest.

2

Watson identified herself as the speaker in the 911 recording.

6

Case: 13-11025 Date Filed: 07/29/2014 Page: 7 of 13

Ten of Carr’s eleven supervised release violations qualified as Grade C

violations, but the burglary of a dwelling offense qualified as a Grade A violation

under U.S.S.G. § 7B1.1(a)(1).

Based on his criminal history category of VI and commission of a Grade A

violation, Carr’s advisory guidelines range for revocation purposes was 33 to 41

months’ imprisonment. See U.S.S.G. § 7B1.4(a)(1). However, because the

maximum statutory penalty was 36 months’ imprisonment, the applicable

guidelines range became 33 to 36 months’ imprisonment. See 18 U.S.C.

§ 3583(e)(3).

G. Carr’s Sentence

The district court adopted the 33- to 36-month advisory guidelines range

from the probation officer’s violation report. Carr requested a 12-month sentence

on the grounds that his criminal history category of VI substantially

overrepresented his criminal history. The government requested a 36-month

sentence.

The district court heard from Carr and Carr’s mother in mitigation. The

district court then “considered the policies and Guidelines of the United States

Sentencing Commission”; the “advisory guideline range”; Carr’s personal and

criminal history, including his “consistent inability to comply with criminal law”

7

Case: 13-11025 Date Filed: 07/29/2014 Page: 8 of 13

and “the terms of [his] probation and . . . supervised release” in state and federal

court; and the need to protect the public. The district court noted that Carr was not

“very susceptible to deterrence” given that he violated the terms of his supervised

release “so soon after” the district court had shown him leniency by declining to

incarcerate him based on earlier supervised-release violations.

Ultimately, the district court sentenced Carr to a 36-month guidelines

sentence with no supervised release. Carr now appeals.

II. DISCUSSION

A. Evidentiary Challenge3

Carr argues that the district court erred by admitting the 911 call at Carr’s

second revocation hearing because (1) the call was unreliable hearsay and (2) its

admission violated Carr’s Confrontation Clause rights.

“Although the Federal Rules of Evidence do not apply in supervised release

revocation hearings, the admissibility of hearsay is not automatic.” United States

v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994). In deciding whether to admit

hearsay testimony, the court must (1) balance the defendant’s right to confront

3

We review constitutional challenges de novo. United States v. Cunningham, 607 F.3d

1264, 1266 (11th Cir. 2010). We review evidentiary rulings for an abuse of discretion. United

States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002). A district court abuses its discretion if it

applies an incorrect legal standard or makes findings of fact that are clearly erroneous. United

States v. Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009).

8

Case: 13-11025 Date Filed: 07/29/2014 Page: 9 of 13

adverse witnesses against the grounds asserted by the government for denying

confrontation and (2) ensure that the hearsay statement is reliable. Id.

Assuming, without deciding, that the contested 911 call contained hearsay,

the call’s admission did not violate Carr’s right to confront the 911 caller and was

otherwise reliable. Therefore, the district court did not abuse its discretion by

admitting the 911 call into evidence.

First, Watson, the declarant in the 911 call, testified at the revocation hearing

and was subject to cross-examination. Therefore, Carr’s right to confront Watson

was not violated. See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S. Ct.

1354, 1369 n.9 (2004) (noting that a defendant’s right to confront the declarant is

satisfied where the declarant appears for cross-examination).

Second, the statements in the 911 call were reliable. Most, if not all, of the

evidence submitted at the revocation hearing—e.g., the 911 call log; Watson’s

testimony; Watson’s written statement; Watson’s friend’s testimony; the

responding police officer’s testimony; and the photographic evidence from the

scene—corroborated the statements in the call. See United States v. Gordon, 231

F.3d 750, 761 (11th Cir. 2000) (stating, in the sentencing context, that materially

consistent evidence provides adequate indicia of reliability of hearsay statements).

9

Case: 13-11025 Date Filed: 07/29/2014 Page: 10 of 13

Finally, even assuming arguendo that the district court erred in admitting the

911 call, the aforementioned corroborating evidence overwhelmingly establishes

that Carr violated the conditions of his supervised release and, therefore, any

evidentiary error regarding the 911 call was harmless. Frazier, 26 F.3d at 114

(noting that an evidentiary error is harmless where the properly considered

evidence overwhelmingly demonstrates that the defendant breached the terms of

his supervised release).

B. Reasonableness of the Sentence 4

Carr also argues that his sentence is procedurally and substantively

unreasonable because the district court (1) did not treat the Guidelines as advisory

and (2) abused its discretion in weighing the 18 U.S.C. § 3553 factors.

If the district court finds that the defendant violated a supervised release

condition, the court may revoke the supervised release term and impose a prison

term after considering certain factors set forth in 18 U.S.C. § 3553(a).5 These

4

“We review the sentence imposed upon the revocation of supervised release for

reasonableness.” United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008).

Our reasonableness review applies the deferential abuse of discretion standard. Gall v. United

States, 552 U.S. 38, 41, 46, 128 S. Ct. 586, 591, 594 (2007).

5

Specifically, in a revocation proceeding, the factors the district court must consider

include (1) the nature and circumstances of the offense and the history and characteristics of the

defendant; (2) the need for the sentence imposed to afford adequate deterrence, protect the

public, and provide the defendant with needed educational or vocational training and medical

care; (3) the advisory guidelines range and pertinent policy statements of the U.S. Sentencing

10

Case: 13-11025 Date Filed: 07/29/2014 Page: 11 of 13

factors include consideration of the policy statements in Chapter 7 of the

Sentencing Guidelines, which includes recommended ranges of imprisonment.

United States v. Silva, 443 F.3d 795, 799 (11th Cir. 2006); U.S.S.G. § 7B1.4.

In reviewing for reasonableness, we first consider whether the district court

committed any significant procedural error and then whether the sentence is

substantively unreasonable in light of the relevant § 3553(a) factors and the totality

of the circumstances. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

The party challenging the sentence has the burden to show it is unreasonable. Id.

at 1189.

As to the procedural reasonableness of his sentence, Carr asserts that the

district court failed to treat the Guidelines as advisory because the district court

stated that it had “no choice” but to impose a high-end guidelines sentence. Carr

takes this “no choice” statement out of context. Before pronouncing Carr’s

sentence, the district court expressly stated that it had considered the “advisory

guideline range” and the record indicates that the district court considered the

relevant § 3553(a) factors. Only after considering “all those factors” did the

Commission; (4) the need to avoid unwarranted sentence disparities; and (5) the need to provide

restitution. See 18 U.S.C. § 3583(e) (cross-referencing 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D),

(a)(4)-(7)).

11

Case: 13-11025 Date Filed: 07/29/2014 Page: 12 of 13

district court state that it had “no choice” but to sentence Carr to 36 months’

imprisonment to preserve the “integrity of the sentencing process.” This was not

procedural error. Therefore, Carr has failed to show that his sentence is

procedurally unreasonable.

Carr also failed to demonstrate that his sentence is substantively

unreasonable. The district court’s 36-month sentence was within the applicable

guidelines range of 33 to 36 months. We ordinarily expect a sentence within the

guidelines range to be reasonable. See United States v. Hunt, 526 F.3d 739, 746

(11th Cir. 2008).

The district court considered many factors in reaching its decision, including

Carr’s personal and criminal history, Carr’s consistent inability to comply with the

criminal law and the conditions of his supervised release, the need for deterrence,

and the need to protect the public. Considering Carr’s extensive criminal history

and repeated violations of the terms of his supervised release, we cannot say that

the district court abused its discretion by “commit[ing] a clear error of judgment in

weighing the § 3553(a) factors” and imposing a high-end, guidelines sentence.

United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc). Therefore,

Carr failed to show that his sentence is substantively unreasonable.

12

Case: 13-11025 Date Filed: 07/29/2014 Page: 13 of 13

C. Standard of Proof

Carr argues that the preponderance-of-the-evidence standard for evaluating

supervised release violations is unconstitutional and that the standard should be

proof beyond a reasonable doubt.

Carr’s argument is foreclosed by this Court’s precedent. See United States

v. Cunningham, 607 F.3d 1264, 1268 (11th Cir. 2010) (holding that a violation of

supervised release need only be proven by a preponderance of the evidence).

Thus, the district court used the appropriate standard when determining whether

Carr violated the conditions of his supervised release.

AFFIRMED.

13