United States v. Cory Rieara , 381 F. App'x 928 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 4, 2010
No. 09-14368
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 09-00348-CR-TCB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
COREY RIEARA,
a.k.a. Pretty Black,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(June 4, 2010)
Before TJOFLAT, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Corey Rieara1 appeals from the district court’s imposition of a sentence
above the advisory Sentencing Guidelines range for his violation of the terms of
his supervised release. He argues that the district court erred by considering
unproven conduct and unreliable hearsay. He also contends that his sentence was
substantively unreasonable. Having considered these arguments in light of the
record, we affirm.
I
In 2000, Rieara was sentenced to nine years’ imprisonment following his
guilty plea to drug-possession charges under 21 U.S.C. § 841(a)(1). The
sentencing court also imposed a three-year term of supervised release under 18
U.S.C. § 3583. Rieara was released from prison in 2008.
In 2009, Rieara was arrested by police in Sandy Springs, Georgia for a
deadly shooting at an apartment complex. The extent of Rieara’s involvement was
unclear, but he had been shot in the leg, and police found his cell phone, one of his
shoes, and his fingerprint near the apartment where the shooting occurred.
Although state authorities initially charged Rieara with murder and firearms-
possession offenses, he was never indicted. Upon learning of the state charges, a
1
Rieara claims that his real name is Joseph Ellis, which is what his state parole officer
called him. For the sake of consistency with our case caption, we refer to him as Cory Rieara.
2
federal probation officer petitioned for the revocation of Rieara’s supervised
release on the grounds that he had committed crimes, frequented places where
drugs were used or distributed, and associated with persons engaging in criminal
activity. After considering the testimony of Rieara’s state parole officer and the
lead detective in the Sandy Springs investigation, the district court revoked
Rieara’s release and sentenced him to three years in prison and an additional two
years of supervised release. Rieara appeals.
II
At Rieara’s revocation hearing, his attorney conceded that he had violated
Georgia law by lying to the police about whether he had rented a car and gone to
work on the day of the shooting.2 The Government informed the court that these
lies constituted a Grade C violation of Rieara’s supervised release under U.S.S.G.
§ 7B1.1(a), and the parties agreed that the Sentencing Guidelines’ advisory range
was three to nine months under U.S.S.G. § 7B1.4.3 Rieara’s attorney asked for a
2
See O.C.G.A. § 16-10-20 (“A person who knowingly and willfully . . . makes a false,
fictitious, or fraudulent statement or representation . . . in any matter within the jurisdiction of
any department or agency . . . of the government of any county, city, or other political subdivision
of this state shall, upon conviction thereof, be punished by a fine of not more than $1,000.00 or
by imprisonment for not less than one nor more than five years, or both.”).
3
On appeal, the Government has suggested for the first time that Rieara committed a
more serious, Grade B violation. We decline to consider this argument and assume, for our
purposes, that the district court sentenced Rieara for a Grade C violation.
3
three-month sentence, but the Government requested a nine-month sentence
because Rieara had been “associated” with a “drug deal gone bad.”
Rieara denied any involvement in the shooting and argued that the evidence
gathered from the apartment complex was insufficient to connect him with any
criminal activity. Through his attorney, Rieara claimed that he had been shot for
unknown reasons outside a nearby gas station. In response, the Government
proffered the testimony of his state parole officer, who recounted a jailhouse
conversation she had had with him after his arrest. During that conversation,
Rieara had told her that he had been shot at the apartment complex after going
there to buy marijuana.
The Government also introduced the testimony of David Romero, the lead
detective at the scene of the shooting. After the court overruled Rieara’s hearsay
objection, Detective Romero testified that Rieara had told another police officer
the story about being shot outside the gas station. Romero also testified that
although his investigation had uncovered evidence of drug sales and a shootout at
the apartment complex, no evidence of any altercation had been found at the gas
station.
After receiving this testimony, the court revoked Rieara’s supervised
release. The court observed that Rieara had admitted lying to the police about
4
renting a car and going to work. And the court noted “pretty compelling”
evidence that the shooting “was a drug deal that went bad.” Finally, the court
found that Rieara was “clearly guilty” of associating with criminals and
frequenting places where illegal drugs were sold because his story about being
shot at the gas station “didn’t add up.” After entertaining argument on the
appropriate sentence, the court imposed a three-year prison sentence and two more
years of supervised release.
III
We review the sentence imposed upon the revocation of a defendant’s
supervised release for an abuse of discretion. See United States v. Livesay, 587
F.3d 1274, 1278 (11th Cir. 2009). The question is whether the sentence was
reasonable in light of the considerations outlined in 18 U.S.C. § 3553(a).4 United
States v. Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). We review the district
court’s factual findings for clear error, United States v. Askew, 193 F.3d 1181,
4
See United States v. Talley, 431 F.3d 784, 786 (11th Cir. 2005) (“[T]he district court
must consider several factors to determine a reasonable sentence: (1) the nature and
circumstances of the offense and the history and characteristics of the defendant; (2) the need to
reflect the seriousness of the offense, to promote respect for the law, and to provide just
punishment for the offense; (3) the need for deterrence; (4) the need to protect the public; (5) the
need to provide the defendant with needed educational or vocational training or medical care; (6)
the kinds of sentences available; (7) the Sentencing Guidelines range; (8) pertinent policy
statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing disparities;
and (10) the need to provide restitution to victims.” (citing 18 U.S.C. § 3553(a))).
5
1183 (11th Cir. 1999), and Rieara bears the burden of establishing that his
sentence is unreasonable, United States v. Clay, 483 F.3d 739, 743 (11th Cir.
2007).
Rieara’s first argument on appeal is that the district court impermissibly
based his sentence on speculation and unproven conduct. We disagree. The
district court was required to consider “the circumstances of the offense” before
imposing sentence. 18 U.S.C. § 3553(a)(1). We may not limit “the information
concerning the background, character, and conduct of a person convicted of an
offense [that] a court of the United States may receive and consider for the
purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661. Accordingly,
we have held that district courts may even consider conduct for which a defendant
has been acquitted if the Government has proved it by a preponderance of the
evidence. United States v. Faust, 456 F.3d 1342, 1347 (11th Cir. 2006).
At any rate, the district court did not sentence Rieara for any unproved role
in the apartment-complex shooting. On the contrary, the court considered the
circumstances surrounding Rieara’s lies to the police during a murder
investigation. In light of Rieara’s statements to his parole officer and the evidence
linking him to the scene of the crime, the district court did not err by concluding
that Rieara’s misconduct was more serious than a simple false statement.
6
The court did refer to several “misrepresentations,” regarding the identity of
Rieara’s girlfriend and his living arrangements, that he apparently never made.
But the transcript of Rieara’s revocation hearing shows that the court referred to
those misrepresentations only once, and in passing. We therefore conclude that its
error was harmless. See Williams v. United States, 503 U.S. 193, 203 (1992) (“[A]
remand is appropriate unless the reviewing court concludes, on the record as a
whole, that the error was harmless, i.e., that the error did not affect the district
court’s selection of the sentence imposed.”).
Rieara’s second argument is that the district court impermissibly relied on
unreliable hearsay when it considered Detective Romero’s testimony. “Although
the Federal Rules of Evidence do not apply in supervised release revocation
hearings, the admissibility of hearsay is not automatic. Defendants involved in
revocation proceedings are entitled to certain minimal due process requirements.
Among these minimal requirements is the right to confront and cross-examine
adverse witnesses.” United States v. Frazier, 26 F.3d 110, 114 (11th Cir. 1994)
(citations omitted). We have thus held that before admitting hearsay evidence in
revocation proceedings, district courts “must balance the defendant’s right to
confront adverse witnesses against the grounds asserted by the government for
denying confrontation.” Id.
7
It is undisputed here that the court did not conduct this balancing test.
Nevertheless, we conclude that the error was harmless. See Frazier, 26 F.3d at
114; United States v. Hands, 184 F.3d 1322, 1329 (11th Cir. 1999) (“An error is
harmless unless there is a reasonable likelihood that it affected the defendant’s
substantial rights.” (quotation marks and brackets omitted)). The hearsay
testimony elicited from Detective Romero merely repeated the gas-station story
that Rieara, through counsel, had already told the court.5 Even if the court had
excluded the hearsay, its conclusion that Rieara’s story “didn’t add up” would
have been the same.
Finally, Rieara argues that his sentence was substantively unreasonable
under 18 U.S.C. § 3553(a). But “[t]he weight to be accorded any given § 3553(a)
factor is a matter committed to the sound discretion of the district court,” and we
will only vacate a sentence “if we are left with the definite and firm conviction that
the district court committed a clear error of judgment” by imposing “a sentence
5
The Government argues that this was not hearsay because it was not offered to prove
that Rieara’s story was true. Cf. Fed. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.”). This argument relies on a faulty understanding of the relevant
inquiry. Rieara’s own statements were not hearsay because they were admissions by a
party–opponent. See id. 801(d)(2). The hearsay in this case consisted in the statements of the
nontestifying officer who told Detective Romero what Rieara had said. Romero’s testimony was
offered to prove the truth of the matter asserted—namely, that Rieara had given the other officer
a potentially false alibi.
8
that lies outside the range of reasonable sentences dictated by the facts of the
case.” Clay, 483 F.3d at 743 (quotation marks omitted). Our review is
deferential: “A district court may impose a sentence that is either more severe or
lenient than the sentence we would have imposed,” as long as its sentence is
reasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
Rieara’s sentence was below the statutory maximum of five years,6 and the
district court explained that all of the § 3553(a) factors had been “carefully
considered.” Cf. Talley, 431 F.3d at 786 (“[W]hen the district court considers the
factors of section 3553(a), it need not discuss each of them.”). The court
specifically addressed Rieara’s criminal history and the fact that he had obstructed
a murder investigation. That we might have imposed a more lenient sentence is
irrelevant; “there is a range of reasonable sentences from which the district court
may choose,” id. at 788, and we cannot say on the record before us that the court
abused its discretion. Rieara’s sentence is therefore
AFFIRMED.
6
See 18 U.S.C. § 3583(e)(3) (“[A] defendant whose term is revoked under this paragraph
may not be required to serve on any such revocation more than 5 years in prison if the offense
that resulted in the term of supervised release is a class A felony . . . .”). Rieara’s 2000 drug
conviction was a class A felony. See id. § 3559; 21 U.S.C. § 841(b)(1)(A)(iii).
9