United States v. Marvin Reese , 775 F.3d 1327 ( 2015 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10257
Non-Argument Calendar
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D.C. Docket No. 5:02-cr-00010-WTM-JEG-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARVIN REESE,
a.k.a. Big Marvin,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
________________________
(January 5, 2015)
Before ED CARNES, Chief Judge, TJOFLAT and ANDERSON, Circuit Judges.
PER CURIAM:
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The district court revoked Marvin Reese’s supervised release and sentenced
him to 46 months imprisonment because it found that he had committed a new
felony controlled substance offense, had possessed a controlled substance, and had
used a controlled substance. Reese appeals the district court’s judgment.
Reese first contends that, during the hearing to revoke his supervised release,
his Sixth Amendment rights were violated because the results of the laboratory test
confirming that one of the substances in question was illegal drugs were admitted
through the testimony of a police officer instead of the lab technician who
performed the test. See U.S. Const. Amend. VI; Melendez-Diaz v. Massachusetts,
557 U.S. 305, 311, 129 S. Ct. 2527, 2532 (2009). Because Reese did not raise this
claim before the district court, we review it only for plain error. See United States
v. Moriarty, 429 F.3d 1012, 1018 (11th Cir. 2005). We will reverse a judgment for
plain error only if three elements are met: (1) the district court committed a legal
error; (2) that error was plain; and (3) it affected the appellant’s substantial rights.
United States v. Pielago, 135 F.3d 703, 708 (11th Cir. 1998); see also United States
v. Dortch, 696 F.3d 1104, 1112 (11th Cir. 2012) (“For a plain error to have
occurred, the error must be one that is obvious and is clear under current law.”)
(quotation marks omitted). Even when those three elements are met, whether to
correct the error remains in our discretion, which we will exercise in favor of
correction only if “the error seriously affects the fairness, integrity, or public
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reputation of the judicial proceedings.” Pielago, 135 F.3d at 708 (quoting Johnson
v. United States, 520 U.S. 461, 467, 117 S. Ct. 1544, 1549 (1997)).
The admission of the lab results without providing Reese an opportunity to
confront and cross-examine the lab technician was not plain error, because neither
this Court nor the Supreme Court has held that the Sixth Amendment applies in
supervised release revocation hearings. See Dortch, 696 F.3d at 1112 (“An error is
not obvious and clear when no Supreme Court decision squarely supports the
defendant's argument, other circuits are split regarding the resolution of the
defendant's argument, and we have never resolved the issue.”) (quotations marks
omitted) (alterations omitted). In fact, it was not error at all: The Sixth
Amendment applies only to “criminal prosecutions,” which does not include parole
revocation hearings. See U.S. Const. Amend. VI.; Morrissey v. Brewer, 408 U.S.
471, 480, 92 S. Ct. 2593, 2600 (1972) (“We begin with the proposition that the
revocation of parole is not part of a criminal prosecution and thus the full panoply
of rights due a defendant in such a proceeding does not apply to parole
revocations.”). And not only is it “apparent to this court that Congress equated
supervised release revocation with probation revocation,” but “courts treat
revocations the same whether they involve probation, parole, or supervised
release.” See United States v. Frazier, 26 F.3d 110, 113 (11th Cir. 1994). To top it
off, eight other circuits have held that the Sixth Amendment does not apply in
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hearings for the revocation of supervised release, probation, or parole. See Curtis
v. Chester, 626 F.3d 540, 544 (10th Cir. 2010); Valdivia v. Schwarzenegger, 599
F.3d 984, 989 (9th Cir. 2010); United States v. Ray, 530 F.3d 666, 668 (8th Cir.
2008); United States v. Kelley, 446 F.3d 688, 691–92 (7th Cir. 2006); United
States v. Williams, 443 F.3d 35, 45 (2d Cir. 2006); Ash v. Reilly, 431 F.3d 826,
829–30 (D.C. Cir. 2005); United States v. Rondeau, 430 F.3d 44, 47 (1st Cir.
2005); United States v. Kirby, 418 F.3d 621, 627–28 (6th Cir. 2005). We make it
nine.
Reese also contends that the district court erred in finding that the substances
that the police seized on his property were controlled substances, a finding which
we review only for clear error. See United States v. Almand, 992 F.2d 316, 318
(11th Cir. 1993). There was testimony that the substances were in fact controlled
substances. The district court’s finding that they were is not clearly erroneous.
AFFIRMED.
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