United States v. Eric D. Kimble , 424 F. App'x 824 ( 2011 )


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  •                                                                    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________                  FILED
    U.S. COURT OF APPEALS
    No. 10-12636                ELEVENTH CIRCUIT
    No. 10-12670                    APRIL 21, 2011
    No. 10-13637                     JOHN LEY
    CLERK
    No. 10-13638
    Non-Argument Calendar
    ________________________
    D.C. Docket Nos. 1:94-cr-01012-MP-1
    1:10-cr-00012-MP-AK-1
    UNITED STATES OF AMERICA,
    lllllllllllllllllllll                                                 Plaintiff-Appellee,
    versus
    ERIC D. KIMBLE,
    lllllllllllllllllllll                                              Defendant-Appellant.
    ________________________
    Appeals from the United States District Court
    for the Northern District of Florida
    ________________________
    (April 21, 2011)
    Before TJOFLAT, PRYOR and KRAVITCH, Circuit Judges.
    PER CURIAM:
    Eric Kimble appeals his sentence of 48 months of imprisonment, which was
    imposed after revocation of his supervised release. 18 U.S.C. § 3583(e)(3).
    Kimble argues that the district court erred by relying on hearsay evidence without
    considering his right to confront the victim or determining the reliability of the
    hearsay as required by United States v. Frazier, 
    26 F.3d 110
    (11th Cir. 1994), and
    his sentence is procedurally unreasonable. Kimble also argues, for the first time
    on appeal, that the district court should have struck sua sponte a violation listed in
    the petition to revoke. We affirm.
    In 1995, Kimble pleaded guilty to conspiring to commit a carjacking,
    carjacking, and possessing a firearm during that crime of violence. The district
    court sentenced Kimble to 181 months of imprisonment followed by three years of
    supervised release. In 2004, Kimble pleaded guilty to conspiring to possess with
    intent to distribute heroin and was sentenced to 24 months of imprisonment and
    three years of supervised release.
    In 2010, a probation officer charged Kimble with violating five conditions
    of his supervised release in both his carjacking and drug cases: (1) committing a
    new offense by falsely imprisoning and robbing Christopher Ramirez “with a
    firearm”; (2) failing to “submit monthly reports”; (3) failing to submit to the
    2
    officer a “financial disclosure statement”; (4) failing to “make restitution
    payments”; and (5) possessing marijuana. Kimble admitted charges 2, 3, 4, and 5,
    but he contested the first charge.
    At the revocation hearing, the United States presented testimony from Brett
    Starr and Jeff Nordberg of the Gainesville Police Department about Kimble’s
    crimes against Christopher Ramirez. Detective Jeff Nordberg testified about
    statements that Ramirez had made to Nordberg and to another officer, and
    Nordberg testified about other corroborating evidence. The district court found by
    a preponderance of the evidence that Kimble had falsely imprisoned and robbed
    Ramirez. The district court revoked Kimble’s supervised release and sentenced
    him to serve concurrent terms of 24 months of imprisonment for charges 2 through
    5 and to a consecutive term of 24 months of imprisonment for charge 1.
    Two days after the revocation hearing, Kimble moved the district court to
    provide reasons for the sentence it had imposed and to reconsider its finding that
    Kimble was guilty of charge 1. The district court granted Kimble’s motion in part
    and conducted a new sentencing hearing. During the hearing, the district court
    stated that it had “in fact consider[ed] the statutory conditions or matters that
    should go into consideration in the imposition of any sentence, as well as the
    guidelines . . . and the notes and the interpretations of them.” The district court
    3
    denied Kimble’s motion to reconsider on the grounds that “there [had been]
    nothing improper about introducing the statements of [Ramirez] through the
    detective on the case”; Kimble had “acknowledge[d] that hearsay is admissible”
    and had “himself relied upon hearsay”; and Kimble “could have subpoenaed the
    victim as a witness,” but “did not choose to do so or to explain why not.”
    Kimble and the United States agree that the district court failed to comply
    with Frazier, but the parties disagree about what standard of review applies to the
    issue. Kimble argues that the issue should be reviewed for harmless error because
    he raised the Frazier argument in his motion to reconsider and the district court
    rejected his argument on the merits. The United States responds that Kimble’s
    objection to the hearsay evidence was untimely and the issue should be reviewed
    for plain error. We need not decide the correct standard of review. Even if
    Kimble preserved the issue for our review, the error was harmless.
    Kimble was not harmed when the district court relied on Detective
    Nordberg’s testimony to find Kimble guilty of violating a condition of his
    supervised release or in sentencing Kimble. To violate Kimble’s right of due
    process, Nordberg’s testimony must have been “materially false or unreliable” and
    “actually served as the basis for [his] sentence,” United States v. Taylor, 
    931 F.2d 842
    , 847 (11th Cir. 1991), but Nordberg’s testimony was materially consistent
    4
    with other evidence, see United States v. Gordon, 
    231 F.3d 750
    , 761 (11th Cir.
    2000) (reliability of hearsay statements can be “apparent from the record”).
    Nordberg’s testimony was consistent with Ramirez’s testimony at a deposition that
    Kimble had entered Ramirez’s apartment carrying a glass jar with a clamp lid;
    drew a .22 caliber handgun and forced Ramirez to relinquish his wallet; placed
    plastic ties over Ramirez’s hands; used duct tape to cover Ramirez’s mouth and
    bind his ankles; stole $960 composed largely of $20 bills; and threatened to kill
    Ramirez if he pursued Kimble. Nordberg’s testimony about Ramirez being bound
    was consistent with the testimony of Officer Brett Starr that he had photographed
    pieces of severed duct tape and zip ties on the floor of Ramirez’s apartment.
    Ramirez identified Kimble as his assailant during a photographic line-up, and
    Nordberg examined cellular telephone records that established Ramirez and
    Kimble had talked on the day of the robbery. Kimble admitted that he had
    purchased marijuana from Ramirez and, when Nordberg arrested Kimble, he was
    in possession of a glass jar with a clamp lid that contained marijuana and a billfold
    containing a large number of $20 bills. Although Kimble complains about the use
    of hearsay evidence against him, Kimble also relied on hearsay evidence. He
    introduced during his revocation hearing affidavits to support his alibi defense and
    he later submitted Ramirez’s deposition in support of his motion to reconsider.
    5
    The district court also did not plainly err by failing to strike sua sponte a
    violation listed in Kimble’s petition to revoke his supervised release. Kimble
    argues that the original judgment in his drug case “did not contain any express
    condition . . . that [he] submit all financial documents as required by the probation
    officer,” but this argument lacks merit. Kimble was charged with failing to submit
    a financial report by a specific date as “instructed” by his probation officer, and
    the third standard condition of Kimble’s supervised release required that he
    “follow the instructions of [his] probation officer.”
    The district court committed no procedural error in sentencing Kimble. The
    district court found by a preponderance of the evidence that Kimble had
    committed a new offense, for which Kimble was subject to a sentencing range
    between 24 and 30 months of imprisonment, United States Sentencing Guidelines
    Manual § 7B1.4(a). Kimble’s sentence of 48 months of imprisonment is well
    below the five-year statutory maximum sentence. 18 U.S.C. § 3583(e)(3).
    Although the district court was not required to consider the sentencing factors
    because Kimble “violate[d] a condition of supervised release prohibiting [him]
    from possessing a firearm,” 
    id. § 3583(g)(2),
    the district court nevertheless took
    those factors into account in fashioning an appropriate sentence, see 
    id. § 3553.
    Kimble complains about the decision to impose consecutive sentences, but that
    6
    decision is one “entrust[ed] to the [district] court’s discretion.” United States v.
    Quinones, 
    136 F.3d 1293
    , 1295 (11th Cir. 1998); see 18 U.S.C. § 3584(a).
    The revocation of Kimble’s supervised release and his sentence are
    AFFIRMED.
    7
    

Document Info

Docket Number: 10-12636, 10-12670, 10-13637, 10-13638

Citation Numbers: 424 F. App'x 824

Judges: Kravitch, Per Curiam, Pryor, Tjoflat

Filed Date: 4/21/2011

Precedential Status: Non-Precedential

Modified Date: 8/3/2023