United States v. Tremayne Nadatra Pace ( 2017 )

Case: 17-11379 Date Filed: 08/04/2017 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11379
Non-Argument Calendar
________________________
D.C. Docket No. 5:03-cr-00054-MCR-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TREMAYNE NADATRA PACE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 4, 2017)
Before HULL, WILSON, and EDMONDSON, Circuit Judges.
Case: 17-11379 Date Filed: 08/04/2017 Page: 2 of 4
PER CURIAM:
Tremayne Pace appeals the revocation of his supervised release, pursuant to
18 U.S.C. § 3583(e). He argues that the district court erred by relying on
false/unreliable hearsay statements to revoke supervised release and impose a
sentence.
We review the district court’s determination that a defendant violated the
terms of his supervised release for an abuse of discretion. United States v.
Copeland, 20 F.3d 412, 413 (11th Cir. 1994). A district court’s findings of fact in
a revocation hearing are reviewed for clear error. United States v. Almand, 992
F.2d 316, 318 (11th Cir. 1993). Clear error will be present when we are left with a
definite and firm conviction that a mistake has been committed. United States v.
Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005). “Where a fact pattern gives rise
to two reasonable and different constructions, the factfinder’s choice between them
cannot be clearly erroneous.” United States v. Almedina, 686 F.3d 1312, 1315
(11th Cir. 2012) (quotations omitted). We review de novo challenges to the
constitutionality of a defendant’s sentence. United States v. Chau, 426 F.3d 1318,
1321 (11th Cir.2005).
A court may revoke a defendant’s term of supervised release and impose a
prison sentence when it finds by a preponderance of the evidence that the
2
Case: 17-11379 Date Filed: 08/04/2017 Page: 3 of 4
defendant violated a condition of his supervised release. 18 U.S.C. § 3583(e)(3).
A district court is required to revoke supervised release for possession of a
controlled substance. 18 U.S.C. § 3583(g)(1). The Federal Rules of Evidence do
not apply in supervised-release revocation proceedings; so hearsay statements may
be admissible, provided certain minimal due-process requirements are met. United
States v. Frazier, 26 F.3d 110, 113–14 (11th Cir.1994). Hearsay is a statement
made by a declarant to prove the truth of the matter asserted in the statement. Fed.
R. Evid. 801(c). A “statement” may be either a person’s oral or written assertion,
and a “declarant” is the person who made the statement. Fed. R. Evid. 801 (a), (b).
Hearsay within hearsay will be admissible when both conform to the requirements
of a hearsay exception. Fed. R. Evid. 805. To comply with due-process
requirements, generally, before admitting hearsay testimony, the district court must
balance the defendant’s right to confront adverse witnesses against the grounds
asserted by the government for denying confrontation. Frazier, 26 F.3d at 114.
A defendant has a due-process right not to be sentenced or have his
supervised release revoked based on false or unreliable evidence. See United
States v. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010) (concerning sentencing);
Frazier, 26 F.3d at 114 (concerning supervised release revocation). To prevail on
such a due-process challenge, “a defendant must show (1) that the challenged
evidence is materially false or unreliable and (2) that it actually served as the basis
3
Case: 17-11379 Date Filed: 08/04/2017 Page: 4 of 4
for the sentence.” Ghertler, 605 F.3d at 1269; see also United States v. Taylor,
931 F.2d 842, 847 (11th Cir. 1991) (applying this test to a probation revocation
hearing and analogizing such hearings to sentencing hearings); Frazier, 26 F.3d at
113-14 (“no significant conceptual difference between the revocation of probation
or parole and the revocation of supervised release”).
The district court did not err by relying on hearsay statements to revoke
supervised release and impose a sentence. The hearsay statement was admissible
at the revocation hearing when Pace had the opportunity to cross-examine the
hearsay declarants. Pace has not carried the burden to show that the hearsay
statement was false or unreliable or that the hearsay was the basis for the sentence.
About reliability, despite inconsistencies in some testimony, the statement was
made on the day of the event, and the statement was later confirmed as true. The
district court could credit it. Pace also failed to show that the hearsay statement
was the basis for the sentence; given the drug-related evidence and violations, Pace
would have been eligible for revocation and the same sentence without the hearsay
statement.
AFFIRMED.
4