United States v. Domingo Marines ( 2017 )

Case: 16-41634 Document: 00514144407 Page: 1 Date Filed: 09/06/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-41634 FILED
Summary Calendar September 6, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DOMINGO MARINES,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:10-CR-661-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Domingo Marines appeals the revocation of his supervised release. He
contends that he was denied the right to confront an adverse witness when the
district court admitted written statements from a confidential informant.
Because Marines did not object in the district court, our review is for plain
error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-41634
A defendant in a revocation proceeding has a qualified right under the
Due Process Clause to confront and cross-examine adverse witnesses, unless
the district court specifically finds good cause for not permitting confrontation.
United States v. Grandlund, 71 F.3d 507, 510 (5th Cir. 1996). The court made
no such finding in Marine’s case. But assuming that the district court
committed clear or obvious error in this regard, Marines has not shown that
any error affected his substantial rights. See Puckett, 556 at 135. The record
contains ample evidence aside from the statement of the confidential informant
to support that Marines violated his supervised release as alleged, including a
police report and independent testimony from a police officer describing a
controlled purchase of heroin from Marines, the officer’s recovery of heroin
from Marines during the execution of search and arrest warrants, and
Marines’s post-arrest statement that he at times sold heroin to his friends.
The record does not indicate that the district court considered the confidential
informant’s statements in its revocation decision. Thus, Marines cannot show
that the alleged violation affected his substantial rights and constituted
reversible plain error. See United States v. Hughes, 237 F. App’x 980, 981 (5th
Cir. 2007) (noting that, where other evidence supported revocation decision,
any confrontation error did not affect defendant’s substantial rights).
Marines also contends that the evidence was insufficient to support
revoking his supervised release, especially because the Government did not
present evidence of a lab report or testing that proved that the substances that
he sold and possessed were heroin. We review the district court’s decision to
revoke Marines’s supervision for an abuse of discretion and will affirm that
decision if a preponderance of the evidence supports that the defendant did not
comply with the terms of his supervised release. United States v. McCormick,
54 F.3d 214, 219 (5th Cir. 1995).
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No. 16-41634
Marines has not established that the Government had to present tests
or reports to establish the identity of the heroin. See generally United States
v. Osgood, 794 F.2d 1087, 1095 (5th Cir. 1986) (noting that circumstantial
evidence can prove the identity of a controlled substance). And Marines does
not refute or contest the veracity of the evidence adduced at the revocation
hearing and has not established that the evidence was false or unreliable. The
evidence, and all reasonable inferences drawn from it, viewed in the light most
favorable to the Government, support that the substances seized were heroin.
See United States v. Alaniz-Alaniz, 38 F.3d 788, 792 (5th Cir. 1994). Because
a preponderance of the evidence supported that Marines violated his
supervised release, he has not established that the district court’s decision to
revoke his supervision was an abuse of discretion. See McCormick, 54 F.3d at
219; § 3583(e)(3).
AFFIRMED.
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