United States v. Pogue

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-10285
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM JAMES POGUE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:94-CR-66-ALL-C-1
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
William James Pogue appeals from the revocation of a term of
supervised release. He contends that the district court
committed plain error by relying on hearsay testimony to find
that he violated a condition of supervised release by the
unauthorized use of a motor vehicle. Pogue fails to make the
requisite showing of plain error. See United States v.
Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994) (applying plain
error analysis where defendant failed to object to hearsay
*
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this opinion should not be published and is not precedent except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. 04-12085
-2-
evidence). Assuming without deciding that the district court
erred by relying on hearsay testimony, the district court
nonetheless could have imposed the same sentence based on
violations that Pogue admitted. Pogue’s claim therefore fails
because he has failed to show that the district court “would
have” imposed a lesser sentence but for the admission of hearsay
testimony. See United States v. Wheeler, 322 F.3d 823, 828 (5th
Cir. 2003).
Pogue also contends that the district court committed plain
error by failing to apply the principles of Apprendi v. New
Jersey, 530 U.S. 466 (2000), and United States v. Booker, 125
S. Ct. 738 (2005), to the Government’s burden of proof at the
supervised-release revocation hearing. Even after Booker, the
facts necessary for revocation of supervised release need not be
found “beyond a reasonable doubt,” and the principles of Apprendi
as expanded by Booker do not apply to revocations of supervised
release. See United States v. Hinson, __ F.3d __, No. 04-10995,
2005 WL 2687081, *2-*3 (5th Cir. Oct 21, 2005).
The judgment of the district court is AFFIRMED.