United States v. William Franklin Johnson , 349 F. App'x 387 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-17066 ELEVENTH CIRCUIT
OCTOBER 13, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 97-14027-CR-KMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM FRANKLIN JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 13, 2009)
Before BIRCH, CARNES and HULL, Circuit Judges.
PER CURIAM:
William Franklin Johnson appeals his 36-month above-range sentence,
which the district court imposed after he violated the terms of his supervised
release by committing lewd and lascivious behavior against a minor. Johnson
contends the district court’s reliance at sentencing on his presentence investigation
report, which includes police reports of unconvicted conduct, violated his Sixth
Amendment right to confrontation. Johnson further alleges the district court erred
in relying on such hearsay evidence without balancing his confrontation rights
against the government’s reasons for denying confrontation.1 We affirm.
We review a district court’s evidentiary decisions, as well as the revocation
of supervised release, for abuse of discretion. United States v. Novaton, 271 F.3d
968, 1005 (11th Cir. 2001) (evidentiary decisions); United States v. Frazier, 26
F.3d 110, 112 (11th Cir. 1994) (revocation of supervised release). We review de
novo the scope of a defendant’s constitutional rights. United States v. Cantellano,
430 F.3d 1142, 1144 (11th Cir. 2005).
Johnson contends that Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354 (2004), which defines protections guaranteed by the Confrontation Clause of
the Sixth Amendment, should extend to testimonial hearsay evidence in supervised
1
Johnson does not challenge the reasonableness of his sentence resulting from the
revocation of his supervised release. Thus he has abandoned this claim, and we will not consider
the district court’s reasons for varying from the guideline range. See United States v. Jernigan,
341 F.3d 1273, 1284 n. 8 (11th Cir. 2003) (noting that a claim not “plainly and prominently”
raised is abandoned on appeal).
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release revocation hearings. That argument fails. The Sixth Amendment right to
confront adverse witnesses is guaranteed only in “criminal prosecutions.” U.S.
Const. Amend. VI. The Supreme Court has held that a parole revocation hearing
does not constitute a “criminal prosecution,” Morrissey v. Brewer, 408 U.S. 471,
92 S. Ct. 2593 (1972), and we have found “no significant conceptual difference
between the revocation of probation or parole and the revocation of supervised
release.” Frazier, 26 F.3d at 113–14. Crawford does not apply to non-capital
sentencing proceedings, because the right to confrontation is a trial right, not a
sentencing right. Cantellano, 430 F.3d at 1146.
Johnson argues that before the district court could rely on hearsay evidence,
it was required to balance his confrontation rights against the government’s reasons
for denying confrontation. He insists this requirement is independent of the
Crawford issue, but it is not. At his hearing Johnson promptly “conceded the
violation” of the terms of his supervised release, and the district court relied on
hearsay evidence only when sentencing him. In this context Johnson had no
confrontation rights to balance against the government’s reasons for denying
confrontation. See Cantellano, 430 F.3d at 1146 (“The right to confrontation is not
a sentencing right.”).
Furthermore, the evidence within Johnson’s PSR is uncontested and
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therefore reliable. It is clearly established that reliable hearsay evidence may be
considered at sentencing. See, e.g., 18 U.S.C. § 3661; United States v. Baker, 432
F.3d 1189, 1253 (11th Cir. 2005); United States v. Zlatogur, 271 F.3d 1025, 1031
(11th Cir. 2001); U.S.S.G. § 6A1.3(a) (2004).2 “Facts contained in a [PSR] are
undisputed and deemed to have been admitted unless a party objects to them before
the sentencing court ‘with specificity and clarity.’” United States v. Beckles, 565
F.3d 832, 844 (11th Cir. 2009) (quoting United States v. Bennett, 472 F.3d 825,
832 (11th Cir. 2006)). “‘It is the law of this circuit that a failure to object to
allegations of fact in a [PSR] admits those facts for sentencing purposes’ and
‘precludes the argument that there was error in them.’” Id. (quoting United States
v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006); Bennett, 472 F.3d at 832)); see
also Fed. R. Crim. P. 32(i)(3)(A) (stating that a sentencing court “may accept any
undisputed portion of the presentence report as a finding of fact”). Johnson’s brief
to this Court does not challenge the PSR’s description of his prior arrests and
unconvicted conduct. Indeed, Johnson has never challenged those
descriptions—not in 1998 when he was sentenced for the underlying drug offenses,
2
The Supreme Court decisions in Crawford and United States v. Booker, 543 U.S. 220,
125 S. Ct. 738 (2005), do not affect these conclusions. See United States v. Amedeo, 487 F.3d
823, 833 (11th Cir. 2007); United States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006); United
States v. Chau, 426 F.3d 1318, 1322–23 (11th Cir. 2005).
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and not with any specificity or clarity during his supervised release revocation
hearing ten years later. Because Johnson’s PSR must therefore be accepted as
accurate, Beckles, 565 F.3d at 844 (citations omitted), the district court was well
within its discretion to rely on it. See, e.g., Baker, 432 F.3d at 1253; Zlatogur, 271
F.3d at 1031.
AFFIRMED.
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