United States v. Alvin G. Keel , 164 F. App'x 958 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
FEBRUARY 1, 2006
No. 04-14270
THOMAS K. KAHN
CLERK
D. C. Docket No. 98-08086 CR-DTKH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALVIN G. KEEL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Florida
(February 1, 2006)
Before DUBINA and KRAVITCH, Circuit Judges, and STROM*, District Judge.
PER CURIAM:
_________________________
*Honorable Lyle E. Strom, United States District Judge for the District of Nebraska, sitting by
designation.
Appellant Alvin G. Keel (“Keel”) appeals his sentence of 23 months
imprisonment and one year supervised release, which the district court imposed
after determining that Keel violated the terms of his original supervised release.
On appeal, Keel argues that the district court erred by allowing the admission of
hearsay testimony during his revocation hearing, in violation of his due process
rights and his Sixth Amendment rights, as recently addressed by the Supreme
Court in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Keel also
argues that the district court’s imposition of his sentence is a violation of his rights
under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), and United
States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005). For the reasons that follow,
we affirm Keel’s sentence.
BACKGROUND
In 1998, a federal grand jury returned an indictment charging Keel with one
count of attempting to transport loggerhead sea turtle eggs, in violation of 16
U.S.C. § § 3372(a)(1), (a)(4), and 3373(d)(1)(B). Keel pled guilty to this offense
pursuant to a plea agreement. At Keel’s sentencing in 1999, the district court
departed upward from the Sentencing Guidelines and sentenced Keel to 60 months
imprisonment, the statutory maximum pursuant to 16 U.S.C. § 3373(d)(1)(B),
because this was a Class D felony. See 18 U.S.C. § 3559(a)(4). The district court
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also imposed a three year term of supervised release, which was the statutory
maximum pursuant to 18 U.S.C. § 3583(b)(2), with the conditions of release
including that Keel participate in an approved drug treatment program. Keel
appealed his sentence, challenging only the reasonableness of the extent of the
upward departure. This court affirmed Keel’s sentence. See United States v. Keel,
No. 99-4087 (October 6, 1999) (unpublished).
Keel served his prison term, and, in October 2002, his three-year term of
supervised release commenced. In February 2003, the district court modified,
without objection, Keel’s supervised release to include placement in a community
correctional center due to Keel’s drug use. In May 2004, the United States
Probation Office filed a petition to revoke Keel’s supervised release, charging
Keel with six supervised release violations, five violations relating to his drug use
and one violation relating to his failure to report a change in residence. At his
initial appearance before a magistrate judge, Keel admitted to these six violations.
Shortly thereafter, the Probation Office submitted an amended petition to revoke
Keel’s supervised release modifying the previous charges against Keel to include a
seventh supervised release violation, specifically, that on June 4, 2004, Keel failed
to refrain from violating the law by attempting to transport marine sea turtle eggs
in violation of 16 U.S.C. § § 3372(a)(1), (a)(4) and 3373 (d)(1)(B). This alleged
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violation is a Grade B supervised release or probation violation. See U.S.S.G. §
7B1.1(a)(2).
In July 2004, a magistrate judge conducted a revocation of supervised
release hearing. At this hearing, Keel restated his admission to violating the first
six supervised release violations, but contested the seventh alleged violation.
Consequently, the magistrate judge heard evidence from the Government on the
seventh alleged violation. The evidence consisted of the testimony of U.S. Fish
and Wildlife Service Officer William Calvert (“Calvert”), whose testimony
recounted the events as explained to him by marine life researchers Chris Johnson
and Kelly Stewart that led to Keel’s arrest for the June 2004 sea turtle eggs
offense. When Calvert began to testify, Keel objected to his testimony on hearsay
grounds. [R. Vol. 4, p. 8-9]. The magistrate judge overruled the objection, stating
that hearsay was admissible during these hearings. [Id. at 9]. Keel made a
continuing objection to the hearsay testimony, and the court noted the objection
for the record, but overruled it. [Id.]. Keel specifically stated that the hearsay
testimony violated his right to confrontation and cited Crawford to support his
objection. [Id.].
The magistrate judge found Calvert’s testimony to be credible and relied
upon it to conclude that Keel committed the offense in violation of supervised
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release. Restating Keel’s admission of the first six supervised release violations,
the magistrate judge verbally recommended that the district court proceed to
sentence Keel for all seven violations. Thereafter, the magistrate judge issued a
written report and recommendation restating his verbal recommendation. In the
report and recommendation, the magistrate judge notified Keel that he had ten
days in which to file any objections. Keel filed no objections, and the district
court subsequently adopted the magistrate judge’s report and recommendation and
found Keel in violation of his supervised release based on all seven charges.
In August 2004, the district court held a sentencing hearing. The only
objection Keel made at sentencing was based on Blakely. [R. Vol. 5, p. 5, 20].
Keel stated specifically that in the event that the Supreme Court held that Blakely
was applicable to revocation proceedings, the imposition of the original
supervised release was unconstitutional because it was discretionary, and the court
was required to make certain findings prior to imposing the term of supervised
release. After emphasizing that Keel’s criminal history details turtle egg poaching
violations in the state courts dating back to 1989 and other separate incidences and
convictions, the Government asserted that the applicable guideline range was 21 to
27 months. The Probation Office determined this recommended guideline range
by considering the Grade B violation and Keel’s criminal history category of VI,
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which is the category determined at the time he was originally sentenced. See
U.S.S.G. § 7B1.4(a), comment n.1. Thus, the Government recommended that the
district court sentence Keel to 23 months imprisonment, one month shy of the
statutory maximum for such violation,1 followed by one year of supervised release.
Considering the probation officer’s opinion that Keel’s continuing criminal
behavior involving turtle eggs finances his cocaine addiction and noting that
Keel’s recidivism was the “paramount” consideration, the district court sentenced
Keel to 23 months imprisonment to be followed by one year of supervised release.
[R. Vol. 5, p. 16]. After the district court imposed the sentence, Keel restated his
Blakely objection. Keel then filed a timely notice of appeal.
ISSUES
1. Whether the district court erred by allowing the admission of hearsay
testimony during Keel’s revocation hearing.
2. Whether the district court’s imposition of sentence, after revocation of
Keel’s supervised release term, violated his constitutional rights under the Sixth
Amendment as interpreted by Blakely.
DISCUSSION
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Since Keel’s original offense was a Class D felony, the maximum term of imprisonment
upon revocation authorized under 18 U.S.C. § 3583(g) and (e)(3) is two years. See 18 U.S.C. §
3583(g), (e)(3).
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Keel argues that the magistrate judge’s admission of the hearsay testimony
at his revocation hearing denied him due process and violated his Sixth
Amendment Confrontation Clause right as recently addressed by the Supreme
Court in Crawford, 541 U.S. 36 (2004). Keel contends that the court should have
employed the requisite balancing test enunciated by this court in United States v.
Frazier, 26 F.3d 110, 112-14 (11th Cir. 1994) (holding that the Federal Rules of
Evidence do not apply in supervised release revocation hearings; however,
defendants are entitled to certain minimal due process requirements, and,
therefore, district courts must balance the defendant’s right to confront adverse
witnesses against the grounds asserted by the Government for denying
confrontation).
As noted earlier, Keel did not file any objections to the magistrate judge’s
report and recommendation. “The absence of objections to the magistrate’s report
and recommendation[] limits the scope of appellate review of factual findings to
plain error or manifest injustice but does not limit review of legal conclusions.”
United States v. Warren, 687 F.2d 347, 348 (11th Cir. 1982).
Even assuming arguendo that the magistrate judge erred in admitting the
hearsay testimony with regard to the seventh violation without conducting the
appropriate balancing test enunciated by this court in Frazier, we conclude that
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the error here would be harmless because the ultimate sentence imposed by the
district court after revocation of Keel’s supervised release was reasonable. See
United States v. Sweeting, ___ F.3d ___, No. 05-11062 (11th Cir. Jan. 26, 2006).
The district court acted reasonably in sentencing Keel to 23 months imprisonment
following his violation of supervised release because Keel admitted to six
supervised release violations, five violations relating to his drug use and one
violation relating to his failure to report a change in residence. The court informed
Keel that these violations were sufficient grounds to revoke his supervised release.
[R. Vol. 4, p. 4]. Therefore, the district court acted within its discretion when it
revoked Keel’s supervised release. See 18 U.S.C. § 3583(e). Additionally, the
district court sentenced Keel to 23 months imprisonment, which is one month shy
of the statutory maximum for such violation. See 18 U.S.C. § 3583(g),(e)(3).
Moreover, the district court adequately considered the § 3553(a) factors, including
Keel’s recidivism, his drug addiction, his criminal history, the nature and
consequences of the offense, and the need for the sentence to reflect the
seriousness of the offense, in arriving at Keel’s sentence. Accordingly, we cannot
say that the district court acted unreasonably in sentencing Keel to 23 months
imprisonment following the revocation of his supervised release.
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Additionally, Keel contends that because he received the statutory
maximum sentence for violation of the original conviction for stealing sea turtle
eggs, any additional sentence imposed upon revocation of supervised release
would be subject to Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348(2000), Blakely, and Booker. Specifically, Keel contends that the district court
violated his constitutional rights by sentencing him to 23 months imprisonment to
be followed by one year of supervised release because this sentence, when added
to his original sentence, exceeded the statutory maximum for his conviction
offense. We reject Keel’s argument. Booker does not apply to revocation
hearings because the supervised release provisions have always been advisory.
United States v. White, 416 F.3d 1313, 1318 (11th Cir. 2005); United States v.
Work, 409 F.3d 484, 492 (1st Cir. 2005). See also U.S.S.G. § § 7B1.1-7B1.5; U.S.
Sentencing Guidelines Manual, Ch. 7, pt. A, introductory cmt. (2004) (noting that
only advisory policy statements apply to sentences imposed upon revocation).
For the foregoing reasons, we affirm Keel’s sentence.
AFFIRMED.
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