UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. MARCO DEWON MURPHY, Defendant - Appellant. No. 18-5052 (D.C. No. 4:06-CR -00159-GKF-1) (N.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before LUCERO , MATHESON , and PHILLIPS , Circuit Judges.

________________ _________________ Following a revocation hearing, t he district court found that M arco Dewon Murphy had violated the conditions of his supervised release. It sentenced him to concurrent prison term s of 24 and 30 months. On appeal, he con tends the court erred in admitting hearsay statements during the hearing. But becaus e neither Mr. Murphy nor the court adequately preserv ed his hearsay objection, and b ecause he fails to demonstrate, under plain error re view, that any error affected his substantial rights, we affirm.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### May 1, 2019
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND We start with legal rules applicab le to Mr. Murphy’s revocation hearing and then turn to the procedural history of this case. Legal Background Morrissey v. Brewer
In Morrissey v. Brewer , 408 U.S. 471 (1972), the Supreme Court stated, “[T]he revocation of parole is not part of a criminal prosecuti on and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” Id. at 480. Rather, a parolee is en titled to “the minimum requirem ents of due process,” including “the right to confront and cross-exa mine adverse witnesses (unless the hearing officer spec ifically finds good cause for n ot allowing confrontation).” Id. at 488-89. The Morrissey protections have been extended to revocation of probation, Gagnon v. Scarpelli , 411 U.S. 778, 782 (1973), and revocation of supervised release, United States v. Jones , 818 F.3d 1091, 1098 (10th Cir. 2016). Because the Sixth Amendment does not apply to revocation hearin gs, see Jones , 818 F.3d at 1102, the confronta tion right in a revocation hea ring is a Fifth Amendment due process protection, United States v. Perez , 526 F.3d 543, 548 (9th Cir. 2008). The con frontation right Morrissey established is “flex ible at revocation hearings.” Jones , 818 F.3d at 1098. In Gagnon , the Supreme Court said, “While in some cases there is simply no ad equate alternative to live test imony, we emphasize that3 we did not in Morrissey intend to prohibit use where ap propriate of the conventional substitutes for live testimony , including affidavits, depositio ns, and documentary evidence.” 411 U.S. at 782 n.5 . Accordingly, the confrontatio n right in a revocation hearing is not as strong as the S ixth Amendment right described in cases such as Crawford v. Washington , 541 U.S. 36 (2004). See Curtis v. Chester , 626 F.3d 540, 544 (10th Cir. 2010). 1
Federal Rule of Criminal Procedure 32.1 Federal Rule of Criminal Pro cedure 32.1(b)(2)(C) stems from Morrissey and provides that a person subject t o a revocation hearing “is enti tled to . . . an opportunity to appear, present ev idence, and question any adver se witness unless the court determines that the inte rest of justice does not require the witness to appear.”
See United States v. Taveras , 380 F.3d 532, 536 (1st Cir. 2004) (explaining that the Rule’s protections “were designe d to track the due process righ ts established for parolees in Morrissey v. Brewer .”). The advisory committee notes to the Rule’s 2002 amendment “direct courts to apply a balancing test when conside ring a releasee’s confrontation rights at a revo cation hearing und er Rule 32.1(b) (2)(C): ‘The court is to balance [(1)] the person’s int erest in the constitutionally gua ranteed right to confrontation against [(2)] the government’s good cause for den ying it.’” Jones , 818

1 “[W]hile hearsay may be received in revocation proceedings mor e readily than at a criminal trial, the Gagnon and Morrissey cases recognize that the probationer does have some rights of confrontation an d cross examination.” 6 Wayne R . LaFave et al., Criminal Procedure § 26.10(c) (4th ed. 2018).4 F.3d at 1099 (quoting Fed. R. Cri m. P. 32.1 advisory committee’ s note to 2002 amendment).
United States v. Jones
In United States v. Jones , 818 F.3d 1091 (10th Cir. 20 16), this court held that “the Rule 32.1(b)(2)(C) balanci ng test governs whether hearsay evidence may be used to revoke superv ised release.” Id. at 1098. We said the “ reliability” of the hearsay statements and the defe ndant’s “interest in cross-exami nation” are relevant to the defendant’s interes t in confrontation. Id. at 1100-01. 2 The district court should weigh these considera tions against “the Government’s explanatio n for failing to present” a witness. Id. at 1101.
Burden of Proof and Evidence Rules Two other features of revocati on hearings are relevant to this appeal. First, “[t]he district court must fi nd by a preponderance of the evide nce that the defendant violated a condition of his supervised release.” United States v. Disney , 253 F.3d 1211, 1213 (10th Cir. 20 01) (quotations omitted); see also 18 U.S.C. § 3583(e)(3).

2 We explained in Jones that “[e]xamples of evid ence possessing recognized indicia of reliability include: (1) the conventional substitut es for live testimony (e.g., affidavits, depositions, and docu mentary evidence), (2) stateme nts falling under an established exception to the hears ay rule, (3) statements corro borated by detailed police investigative reports, and (4) st atements corroborated by the r eleasee’s own statements.” 818 F.3d at1098 n.4 (quota tions omitted). We also said, “Corroborating ev idence is often key to determining whether a stat ement is sufficiently reliable .” Id. (quotations omitted).5 The government must meet this burden. United States v. Whalen , 82 F.3d 528, 531-32 (1st Cir. 1996). Second, the Federal Rules of Evi dence—“except for those on priv ilege”—do not apply to proceedings “granti ng or revoking probation or sup ervised release.” Fed. R. Evid. 1101(d)(3); see also United States v. Henry , 852 F.3d 1204, 1206 (10th Cir. 2017); Curtis , 626 F.3d at 544. Further, “neith er Rule 32.1(b)(2)(C) nor the Jones decision interpreting it applie s to the admission of hearsay s tatements from witnesses who are available for cross- examination.” Henry , 852 F.3d at 1207. The Rule “speaks only to whether an adverse witness is ‘require[d] . . . to appear’ so that defendants might have the ‘oppo rtunity to . . . question’ [him or] her.” Id. (quoting Fed. R. Crim. P. 32.1(b)(2)(C)). Courts nonetheless frequently refer to “hearsay” when discussing Rule 32.1(b)(2 )(C)’s confrontation right. See, e.g. , Jones , 818 F.3d at 1098 (holding “the R ule 32.1(b)(2)(C) balancing test governs whether hearsay evidence may be used to re voke supervised release”); United States v. Simms , 757 F.3d 728, 733 (8th Ci r. 2014) (holding a cour t is not required to apply the Rule 32.1(b)(2)(C) balancing test in the absence of either a hearsay or confrontation objection); Perez , 526 F.3d at 548 (referring to bot h hearsay and confrontation)

. Procedural Background Mr. Murphy’s 2007 Sentence In 2007, Mr. Murphy was convicted of possessing cocaine base w ith intent to distribute, in viola tion of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (iii), and possessing a6 firearm in furtherance of a drug trafficking crime, in violatio n of 18 U.S.C. § 924(c)(1)(A)(I). He was senten ced to 93 months in prison on the drug count and 60 months on the firearm count, to r un consecutively, followed by a single five-year term of supervised release. O ne of Mr. Murphy’s supervised rel ease conditions was that he “not commit another fed eral, state[,] or local crime.” ROA, Vol

. I at 23. In 2015, the district court gran ted a joint motion to reduce M r. Murphy’s prison sentence to time served. 3 He was released from pr ison to begin his five-year term of supervised release. Revocation of Supervised Release In 2018, the U.S. Probation Offi ce sought revocation of Mr. Mu rphy’s supervised release. It alleged that Mr. Murphy had been arrest ed for “the offense[s] of Trafficking Cocaine and Possess ion of Firearm After Former C onviction of Felony,” thereby violating the c ondition that Mr. Murphy “not c ommit another federal, state, or local crime.” Id. at 31. 4
The district court held an ev identiary hearing to determine wh ether Mr. Murphy’s supervised release should be revoked because he commit ted another crime. At the end of the hearing, it f ound “that Mr. Murphy did commit another federal or

3 Before 2015, Mr. Murphy’s senten ce was reduced twice to accoun t for retroactive amendments to the Un ited States Sentencing Guidelin es, resulting in consecutive 60-month terms on each count.

4 The Government limited its evid ence at the revocation hearing to the trafficking offense

.7 state crime” and “violated the mandatory conditions of his supe rvised release.” ROA, Vol. II at 60-61. Three week s later, at a sentencing hear ing, the court revoked Mr. Murphy’s supervised release and imposed sentences of 24 mon ths as to the first count and 30 months as to the t hird count of his 2007 indictmen t and conviction, to run concurrently. The Government’s only witness at the revocation hearing was Tu lsa Police Department Officer Ron Leatherman . Mr. Murphy called no witnes ses. We describe (a) Officer Leatherman’s testimo ny, (b) portions of his testimo ny that are not clearly based on his personal knowledge o r on statements of others, (c) Mr. Murphy’s objections at the revocation hear ing to Officer Leatherman’s te stimony and the district court’s rulings on them , and (d) the district court’s Rule 32.1(b)(2)(C) ruling at the sentencing hearing.

a. Summary of Officer Leatherman’s testimony The following summarizes Office r Leatherman’s testimony at the revocation hearing. The transcript shows that some portions of Officer Le atherman’s testimony were based on personal knowledge and some on statements made to him by others. But there are yet other portions where it is unclear whether the ba sis for his testimony was personal knowledge or hearsay. In mid-March 2018, a confidentia l informant (“CI”) approached Officers Leatherman and Tim Wilson and re ported that Mr. Murphy was sell ing cocaine in Tulsa. The CI had a phone numbe r for Mr. Murphy and said he dr ove a gray Dodge8 Charger. One of these officers confirmed that a gray Dodge Cha rger was registered to Mr. Murphy. 5 The police arranged two controll ed buys for the CI to purchase cocaine from Mr. Murphy. Before the CI went to meet Mr. Murphy, Officer Lea therman asked whether he had drugs and searched him to ensure that he did not . Mr. Murphy arrived at the first controlled buy in his Dodge Charger. The CI bought cocaine from Mr. Murphy, and the police co llected and tested it. After the first controlled buy , the police obtained a warrant to install a GPS tracking device on Mr. Murphy’s car . The device revealed 45 sh ort visits over 12 days to a residence on North No rfolk Avenue in Tulsa. Officer Leatherman surmised that the North Norfolk Avenue a ddress was a stash location—a pl ace where a drug dealer stores drugs away from his or her home. The second controlled buy occurre d later in March. The police met with the CI. Either the police or the CI called Mr. Murphy to arrange t he buy. After the phone call, and according to poli ce surveillance and the GPS tr acker, Mr. Murphy traveled to the stash location and then to the controlled buy l ocation. He sold cocaine to the CI. As with the first c ontrolled buy, before the CI dep arted for the buy

5 As explained below, the Govern ment sought to introduce evidenc e that the police showed the confidential in formant a photo of Mr. Murphy to confirm his identity. Mr. Murphy objected, and the court admitted the evid ence only to show the steps of the police investigation.9 location, Officer Leatherman ask ed whether he had drugs and sea rched him to confirm he did not. On April 2, after the second c ontrolled buy, the Tulsa police stopped Mr. Murphy based on an outstanding t raffic warrant and arrested him . The police found two cell phones and a set of keys on him. After arresting Mr. Murphy, the police executed search warrant s at the stash location and at his home. At th e stash location, they found co caine, guns, and evidence that crack c ocaine was being manufactured. At Mr. Mur phy’s home, they found cash and cell phones. From jail, Mr. Murphy called hi s wife and Deonte Mason, the pe rson whose name was on paperwork found in t he stash location. The jail re corded these calls. 6
One of these calls revealed that a key Mr. Murphy carried when he was arrested was to Mr. Mason’s residence, the sta sh location where drugs were f ound. Perhaps to distance her spouse from drugs f ound at the stash location, Mr. Murphy’s wife urged him to say he had Mr. Mason’s ke y because Mr. Mason was going o ut of town.

6 As explained below, Officer Leat herman testified to his recoll ection of the phone calls based on notes he to ok about the recordings. Mr. M urphy, through counsel, objected that the best e vidence rule required admissio n of the recordings. The court overruled the objection.10 b. Uncertain Basis for Officer Leatherman’s Testimony As mentioned above, the transcr ipt of Officer Leatherman’s test imony fails to show whether certain statements were based on his personal know ledge or on statements of others. We descri be two examples that incriminat ed Mr. Murphy. Officer Leatherman responded to t he Government’s questions abou t the first controlled buy: Q. . . . Can you, officer, explai n for the court . . . what happened after you met with the informant? A. Me and Officer Wilson as ked the informant if they were willing to do a controlle d buy from Mr. Murphy. The informant agreed a nd steps were taken. We bought—the informant bought cocaine fro m Mr. Murphy, we collected it and turned it in, tested it. Q. What did the test that you conducted, what were the results of that test? A. That it was presumptiv ely positive for cocaine. Q. The controlled buy that you referenced, how did Mr. Murphy travel to that— how did he get there? A. In his silver Dodge Charger. Q. And did you run a sear ch of the license tag associated with the s ilver Dodge Charger? A. One was done. I don’t r emember if I did it or Officer Wilson did, but the vehicle checked to Mr. Murphy. Id. at 24.11 The transcript does not reveal how Officer Leatherman knew the informant bought cocaine from Mr. Murphy or how he knew Mr. Murphy arrive d in the Dodge Charger. Did Officer Leatherman witness Mr. Murphy’s arrival a nd the transaction, or did he repeat what the CI or another police officer told him ? Also unclear is whether Officer Leatherman deter mined that the car was register ed to Mr. Murphy or relied on Officer Wilson’s stat ement that it was. This uncerta inty resulted from the prosecutor’s failure to inquire f urther to clarify and defense counsel’s failure to object. The basis for the following part of Officer Leatherman’s testi mony about the second controlled buy is similarly uncertain: Q. . . . . With respect to Mr. Murphy, was there another—were there any other such controlled purchases in the course of your investi gation with Mr. Murphy? A. Yes. Q. And can you explain that to the court? A. That’s the second cont rolled buy. At some point after the GPS tracking device had been affixed to his car, Officer Wilson and I met with the informant, did another controlled buy. Mr. Murphy wa s contacted. Officers were conducting surveillance on Mr . Murphy before the phone call was made. After the phone call was made, Mr. Murphy went to . . . Norfolk [Avenue] and then came and met the informant, and the controlle d buy was done right after he had left the house on Norfo lk. Cocaine was bought, it was tested, and, again, it wa s presumptive positive. Id. at 35.12 Officer Leatherman did not say how he knew that the transaction occurred or that Mr. Murphy was present. A lthough it is clear that Officer Leatherman met with the CI sometime before the buy, it is not clear whether he was present at or near the buy. Nor is it clear who calle d Mr. Murphy to arrange the buy. Did police officers dial the number so they could en sure it was Mr. Murphy’s, or di d the CI dial? Who bought the cocaine, a nd who tested it? As the foregoing demonstrates, significant parts of Officer Lea therman’s testimony that incriminated Mr. Mu rphy may have been based on p ersonal knowledge or on knowledge he obtai ned from statements of the CI or other police officers—none of whom testified a t the hearing. Neither the at torneys nor the court prompted Officer Leatherman to e xplain the basis of his knowled ge.

c. Mr. Murphy’s limited objecti ons and the court’s rulings Mr. Murphy made only two objecti ons relevant to hearsay or his confrontation right under Rule 32.1(b)(2)(C). First, Mr. Murphy objected to O fficer Leatherman’s testimony th at “a check was done in TRACIS, our police da tabase, and a picture of Mr. M urphy was located and shown to the informant[,] a nd the informant identified the picture of Mr. Murphy as the person they knew.” Id. at 22. Mr. Murphy, through counsel, objected, arguing this testimony was “[h]earsay as to the identification by the c onfidential informant of my client from appare ntly a photograph.” Id. The court overruled the objection, accepting the testimony “simply fo r the purpose of showing that [Officer13 Leatherman] went through the st ep as opposed to the truth of th e matter asserted.”
Id. Second, Mr. Murphy’s counsel object ed to Officer Leatherman’s t estimony about the recorded phone calls f rom the jail, arguing that this testimony violated the best evidence rule . He explained: I understand that certain evi dence can be heard at a revocation hearing under [Rule] 32.1. [Rule] 32.1 furthermore says that there n eeds to be a balancing test applied by the court. If the court’s asking me, do I think that the court—if the court is asking me if I’d rat her have the tape before the court than the testimony of the officer, then my answer is yes because I argue that it’s the best evidence. At [Rule] 32.1., Judg e—and I don’t mean to interrupt—it talks about—and I’m sorry—in (b)(2)(C), questioning any adverse wi tness unless the court determines that the interest o f justice does not require the witness to appear.
Id. at 32. The district court resp onded, “Well, that doesn’t exac tly fit the circumstances here; correct?” Id. Mr. Murphy’s counsel the n referred the court to Jones : Judge, I’d say—there’s a case that’s called Jones. It is more in dealing with t he hearsay purpose—or the hearsay issue when it comes to the revocation hearing. However, it does talk about t he court’s obligation to conduct a weighing test—a bal ancing test actually—as to whether the court ought to hear the testimony. It’s United States v. Jones , 818 F.3d 1091. It only go es to hearsay, sir, it really does, but I just as k the court to consider the balancing aspect of it.14 Id. at 32-33. The court overruled the objection and “allow[ed] th is hearsay evidence as to the contents of the jail calls.” Id. at 33. It nonetheless ordered the Government to provide recordings of the pho ne calls to Mr. Murphy’s counse l.
d. Sentencing hearing At the sentencing hearing approx imately three weeks later, the district court revisited Jones . Unprompted by the part ies, the court stated: At [the revocation] hearing , the government presented hearsay statements of a confid ential informant and non[-] testifying officers throu gh Tulsa police officer Ron Leatherman. The court applied the bala ncing test to weigh the strength and reliability of the evidence presented by the testifying officer who was invo lved in all facets of the investigation and arrest of the defendant against the benefit to the defendant of the produc tion of additional officers involved and the exposure of th e confidential informant for cross-examination . The court cites United States v. Jones , 818 F.3d 1091 (10th Cir. 2016). The court finds and conclude s that the interest of justice did not require the dis closure of the identity of the confidential informant, as th e government’s interest in protecting the identity of t he confidential informant outweighed the defendant’s int erest in confrontation. The reliability of the testifying officer provided good cause to negate the requirement of additional officers or the confidential informant to a ppear for questioning by counsel for the defendant in accordance with Federal Rule of Criminal Procedure 32.1(b)(2)(C).15 Id. at 70. Neither the defense counsel nor the prosecutor made an y statement in response to the court’s comment or ruling. The court sentenced Mr. Murphy for his supervised release violations.
II. DISCUSSION The following explains that (A) neither Mr. Murphy nor the dist rict court preserved the Rule 32 .1(b)(2)(C) issue for appeal, (B) Mr. Murp hy must therefore show the elements of plain erro r to prevail on appeal, and (C) he fails to do so because he cannot carry his burde n to show that any error affec ted his substantial rights.
Preservation We consider whether the Rule 32. 1(b)(2)(C) issue was preserved either because (1) Mr. Murphy called th e district court’s attention to it or (2) the court sua sponte adequately addressed it. We conclude the issue was not preserved. Mr. Murphy’s Failure to Object

a. Additional legal background “If a litigant believes that an err or has occurred (to his detr iment) during a federal judicial proceeding, he must object in order to preserv e the issue. If he fails to do so in a timely m anner, his claim for relief from the erro r is forfeited.” Puckett v. United States , 556 U.S. 129, 134 (2009). “In federal criminal cases, Rule 5 1(b) tells parties how to preserve cl aims of error: ‘by informing t he court—when the court ruling or order is made or sought—of the action the party wishes the court to16 take, or the party’s objection to the court’s action and the gr ounds for that objection.’” Id. at 135. 7
b. Mr. Murphy’s failure to preser ve a general hearsay objection Mr. Murphy’s two objections, desc ribed above, were inadequate t o preserve the Rule 32.1(b)(2)(C) issue as to all of the CI’s and non-test ifying officers’ hearsay statements that Officer Leatherm an may have relied upon for his testimony. The first objection alleged that Officer Leatherman’s testimony about the CI’s identifying Mr. Murphy from a phot ograph was hearsay. The dist rict court admitted the testimony only for the non- hearsay purpose of showing a ste p in the undercover operation. Mr. Murphy did not object to admission on this grou nd, nor does he contest it on appeal. More pertinent to this appeal, the objection failed to put the court on notice that Mr. Murphy objected t o all of Officer Leatherman’s testimony that may have been based on the CI’s or the non-testifying officers’ sta tements.

7 Federal Rule of Criminal Procedure 51(b) states: A party may preserve a claim of error by informing the court—when the court ruling or order is made or sought— of the action the party wish es the court to take, or the party’s objection to the court’ s action and the grounds for that objection. If a party doe s not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is gove rned by Federal Rule of Evidence 103.17 The second objection was to Offi cer Leatherman’s testimony abou t Mr. Murphy’s jail phone calls. Counse l initially obj ected based on the best evidence rule. 8 A hearsay or confrontation objec tion would have been inapt to the extent Officer Leatherman’s testimony concerned Mr. Murphy’s non-hears ay party admissions. His counsel eventua lly mentioned Rule 32.1(b)(2)(C ) and Jones

. Mr. Murphy’s citation to this au thority could have put the dist rict court on notice of the confrontation issu e as to statements made by Mr. Murphy’s spouse and Mr. Mason in the jail phone calls . In overruling the objection , the court ordered the Government to provide Mr. Murphy’ s counsel with recordings of t he phone calls “to verify the statements.” Id. at 33. The court’s ruling was limited to the contents of these calls, and the objection did not alert the court to a hea rsay objection to other testimony. Even if Mr. Murphy’s objection to t he phone calls was preserved in the district court on confrontati on grounds, the contents of the jail phone calls are not at stake in this appeal. Mr. Murphy confines his argument on appeal to the statements of the CI and non-testifying officers. 9 He fails to seek review of t he district court’s ruling on

8 “The best evidence rule, set fort h in Federal Rule of Evidence 1002, holds that ‘[t]o prove the content of a w riting, recordin g, or photograph, the original writing, recording, or photograph is requir ed, except as otherwise provi ded in these rules or by Act of Congress.’” United States v. Phillips , 543 F.3d 1197, 1203- 04 (10th Cir. 2008).

9 In his brief, Mr. Murphy states the issue as: “Whether the di strict court’s reliance on hearsay statements from a confidential informant and non-testifying police officers to conclude that Mr. Murphy sold cocaine to the informant in18 his best evidence rule objecti on or the court’s failure to cond uct a Rule 32.1(b)(2)(C) balancing test with respect to statements by Mr. Murphy’s wife or Mr. Mason. Accordingly, he has waived any ar gument that the district court should not have considered statements made in the jail phone calls. United States v. Cooper , 654 F.3d 1104, 1128 (10th Cir. 2011) (“We routinely have declined t o consider arguments that are not raised, o r are inadequately presented, i n an appellant’s opening brief.” (quotations and brackets omitted)). The District Court’s Ruling at Sen tencing Failed to Preserve th e Rule 32.1(b)(2)(C) Issue Mr. Murphy argues that the distr ict court’s discussion of Rule 32.1(b)(2)(C) at the sentencing hearing preserved f or appeal the issue of whethe r the court’s application of the balancing test to admit Officer Leatherman’s hearsay testimony was reversible error.

a. Additional legal background
In United States v. Hernandez-Rodriguez , 352 F.3d 1325 (10th Cir. 2003), we said that “when the district c ourt sua sponte raises and explic itly resolves an issue of law on the merits, the appellant may challenge that ruling on a ppeal even if he failed to raise the issue i n district court.” Id. at 1328. In this ci rcumstance, “review on

controlled buys . . . was reversib le error . . . .” Aplt. Br. at 1-2 (emphasis added). Because Mr. Murphy does not contend that the district court err ed in considering the statements in the phone calls, w e need not address whether they should have been excluded under the best eviden ce rule or Rule 32.1(b)(2)(C).19 appeal is not for ‘plain error,’ but is subject to the same sta ndard of appellate review that would be applicable if the appellant had properly raised t he issue.” Id. We explained that a district court’ s sua sponte resolution of a le gal issue may satisfy the two reasons that contemporaneous objections are required for pr eservation. Those

reasons are: (1) “to give [the district] cour t—which often is in the best position to evaluate a legal is sue in light of its factual context, and to develop the factual record necessary to resolve it—an opportunity to a ddress the issue in the first instance, and to avoid erro rs while they are still avoidable”; and (2) to “afford[] opposing couns el the opportunity to argue the point and, perhaps more im portantly, to offer relevant evidence.” Id. at 1329. Other circuits apply a similar rule. See, e.g. , Ahanchian v. Xenon Pictures,
Inc. , 624 F.3d 1253, 1260 n.8 (9th C ir. 2010) (Waiver “does not app ly where the district court nevertheless addres sed the merits of the issue n ot explicitly raised by the party.” (quotations omitted )). Views vary about whether ap plication of the rule is discretionary. The Sixth Circuit has stated, “[T]here can be n o forfeiture where the district court nevertheless addres sed the merits of the issue.” United States v. Clariot , 655 F.3d 550, 556 (6th Cir. 2011) (quotations omitted). On t he other hand, the D.C. Circuit has s tated that application of the rule is “a matter of discretion.” Al Bahlul v. United States , 767 F.3d 1, 48 (D.C. Cir. 2014).20 b. The district court did not preser ve the Rule 32.1(b)(2)(C) issue We decline to apply the rule in Hernandez-Rodriguez because it does not fit this case. Hernandez-Rodriguez turned on the district c ourt’s opportunity to avoid error and the potential for the court or the objecting party to develop a record for appellate review. A contemporane ous objection he lps develop th e record when a witness gives live testimony, a s in this case. For example: Suppose that evidence sought t o be introduced consists of several statements or items te ndered as a unit in a . . . trial transcript. Assume that the opponent objects to the whole of the evidence when some parts are subject to the objection made but other parts a re not. In this situation, the judge does not err by overruling the objection. It is not the judge’s responsibility to seve r the bad parts if some are good. That is the opponent’s burden. 1 George E. Dix et al., McCormic k on Evidence § 52 (7th ed. Jun e 2016 update). This is why the Federal Rules of Eviden ce require that an objection be “timely.” Fed. R. Evid. 103(a)(1)(A); Fed. R. Evid. 1 03(a) advisory committee notes (re quiring objections to “alert [the court] to the proper c ourse of action and enable op posing counsel to take proper corrective measures”).
In Hernandez-Rodriguez , the defendant objected to the validity of a warrant. Because the scope of the contes ted evidence was clear, a contem poraneous objection was not necessary to develop the record. Here, it is not clear how much of Officer Leatherman’s testimony was base d on hearsay statements. A cont emporaneous objection would likely have promp ted the Government to respond or the court to ask21 for a response. The Government m ight have answered by developi ng the record, perhaps explaining whether Offi cer Leatherman’s testimony was b ased on personal knowledge or hearsay. If the la tter, it might have provided a factual basis for not calling the CI or the non-testif ying officers. But Mr. Murphy did not object. Instead, the district court addr essed the Rule 32.1(b)(2)(C) an d Jones balancing test at Mr. Murphy’s s entencing hearing roughly three weeks after the revocation hearing. Rather than seeking a response from the Go vernment as to whether portions of Officer Leat herman’s testimony should be ex cluded under Rule 32.1(b)(2)(C), the court simply ruled in the Government’s favor . At that point, the Government had no reason to devel op the record further. The ru ling also failed to indicate which of Officer Leatherm an’s statements it covered. For these reasons, the district court did not compensat e for Mr. Murphy’s failure to o bject. 10
* * * * Because Mr. Murphy’s argument on appeal about denial of his con frontation right under Rule 32.1(b)(2)(C) was unpreserved, it is subject t o review only for plain

10 Another way to make this point i s to assume that at the senten cing hearing, Mr. Murphy rather than the court had raised the Rule 32.1(b)(2) (C) issue, objecting to Officer Leatherman’s testimony without being any more specif ic about the portions of testimony he was cha llenging than the court was. H ad the court denied the objection as untimely and l acking specificity, we would mos t likely consider the objection forfeited and re view for plain error. See Macsenti v. Becker , 237 F.3d 1223, 1233-34 (10th Cir. 2001) (reviewing ruling on Daubert objection made at the close of evidence for plain e rror). Under these circumstances, Mr. Murphy cannot rely on the district court’s sta tements at the sentencing heari ng to preserve his broad and unfocused evidentiary objec tion that he failed to make at t he revocation hearing.22 error. See United States v. Mulero-Díaz , 812 F.3d 92, 96 (1st Cir. 2016) (When a “Rule 32 challenge is at least f orfeited . . . we review for pl ain error.”). 11 Plain Error Analysis Additional Legal Bac kground on Plain Error Plain error review “involves four steps, or prongs”: (1) “ther e must be an error or defect . . . that has not been . . . affirmat ively waived[] by the appellant”; (2) “the legal error must be clear or obvi ous”; (3) “the error must have affected the appellant’s substantial rights, w hich in the ordinary case mean s he must demonstrate that it affected the outcome of the distri ct court proceedings” ; and (4) to warrant the appellate court’s discretion to remedy the error, the error mus t “seriously affect[] the fairness, integrity[, ] or public reputation of judicial proceed ings.” Puckett , 556 U.S. at 135 (quotations omitted); see also United States v. Uscanga-Mora , 562 F.3d 1289, 1295 (10th Cir. 2009). “The third . . . limitation on a ppellate authority [to consider forfeited errors] is that the plain error affect substantial rights.” United States v. Olano , 507 U.S. 725, 734 (1993) (quotations and brackets omitted ). “[I]n most cases ,” this means “that the error must have been p rejudicial: It must h ave affected the ou tcome of the district court proceedings.” Id. ; see United States v. Romero , 491 F.3d 1173, 1179 (10th

11 Because we affirm un der plain error review, we do not consider the Government’s argument that Mr . Murphy waived, rather than forfe ited, his confrontation right.23 Cir. 2007). This inquiry differs from a harmless error analysi s in that “[i]t is the defendant rather than the Govern ment who bears the burden of pe rsuasion with respect to prejudice.” Olano , 507 U.S. at 734. “Norma lly . . . the defendant must make a specific showing of prej udice to satisfy the ‘affecting substantial rights’ prong” of plain error review. Id. at 735. “[T]he burden of establishing entitl ement to relief for plain e rror is on the defendant claiming it, and . . . that burden s hould not be too easy for defendants
. . . .” United States v. Dominguez Benitez , 542 U.S. 74, 82 (2 004) (addressing appeal of district court’s failu re to give a warning required b y Federal Rule of Criminal Procedure 11). This as signment of burden “encourage[s ] timely objections and reduce[s] wasteful reversals by demanding strenuous exertio n to get relief for unpreserved error.” Id. Mr. Murphy Has Not Shown Prejudice Mr. Murphy failed to object to mo st of Officer Leatherman’s tes timony, and it is uncertain whether particular i ncriminating parts of that tes timony were taken from statements of others. Mr. Murph y must therefore show what port ions of Officer Leatherman’s testimony qualify fo r review under Rule 32.1(b)(2) (C). Although he gives a few examples, Mr. Murphy also argues generally that the district court relied on hearsay. We doubt Mr. Murphy ha s met his burden to show tha t the district court erred and that the error was plain.24 We choose, however, to decide thi s appeal on the third step of plain error review—that Mr. Murphy has faile d to demonstrate that any error in the district court’s Rule 32.1(b)(2)(C) deci sion affected his substantial ri ghts. We therefore assume without deciding that Mr. M urphy has satisfied the first two steps of plain error review—that (1) the distri ct court erred in admitting Off icer Leatherman’s testimony that was based on stat ements of the non-testifying CI and the other officers, and (2) the error was plain under Rule 32.1(b)(2)(C) and Jones . We nonetheless affirm because Mr. M urphy has failed to show that a ny error in the district court’s Rule 32.1(b)(2 )(C) ruling affected his substan tial rights. To show prejudice, Mr. Murphy mu st convince us, after excluding the hearsay evidence, that the remaining ev idence would not establish that he violated his supervised release by selling dr ugs. His burden includes showi ng what portions of Officer Leatherman’s testimony were hearsay. If he cannot show that any particular portion of Officer Leatherman’s t estimony was based on hearsay, then we properly consider that testimony as par t of the remaining evidence. Mr. Murphy contends that the di strict court shoul d have exclud ed (1) the CI’s statements (a) identifying him as the person selling drugs and (b) about the controlled buys, Aplt. Br. at 19, 26-28; an d (2) “evidence that non-testif ying officers saw or determined that Mr. Mu rphy went to the No rfolk address” before the second controlled buy, id. at 28. He contends that without this evidence, the “finding t hat Mr. Murphy had access—had a key—to the residence in which drugs were found”25 fails to establish that he viol ated his supervised release cond ition by a preponderance of the evidence. Id. We are not persuaded. Officer Leatherman testified to non-hearsay evidence about (a) the circumstances of the first contro lled buy, (b) Mr. Murphy’s con nection to the stash location, and (c) the circumstan ces of the second controlled bu y. 12 Taken together, this evidence permitted the cour t, apart from h earsay evidence, to find that he violated the terms of his superv ised release by selling drugs.

a. The first controlled buy Officer Leatherman testified tha t the CI “bought cocaine from M r. Murphy” at the first controlled buy. ROA, Vol. II at 24. Mr. Murphy cont ends this is a hearsay statement “inasmuch as the offi cer did not indicate that police witnessed either buy (which usually does not happen with controlled buys).” Aplt. B r. at 19. But Officer Leatherman did not explain th e basis for his knowledge. Mr. Murphy’s argument would place on the Government the burden of showing that Officer Leatherman witnessed the buy and therefore spoke from personal knowledge. But on plain error review, Mr. Murphy bear s the burden of showing the opposite—that Officer Leatherman did not witness th e controlled buy, rendering his testimony hearsay . He has not done so. On cross -examination, Officer

12 Because we find enough evidence in the hearing transcript to a ffirm, we need not address the Government’s argument that the court could consider police reports and other documents attac hed to the Petition for Warran t for Offender Under Supervision. See Oral Arg. at 19:12-19:23; 21:11-21 :50; 27:20-27:55; 28:11-28:45

.26 Leatherman testified only that t here were no photos or recordin gs of the controlled buy, not that he did not see it . Mr. Murphy points to no recor d evidence to show that Officer Leatherman’s statement w as not based on personal knowle dge. 13
Even if Officer Leatherman did not see the transaction, the cir cumstantial evidence shows that Mr. Murphy sold drugs to th e CI. Officer L eatherman testified that Mr. Murphy arrived at the controlled buy location in his D odge Charger. Officer Leatherman’s testimony did not reveal his basis of knowledge. 14 But Mr. Murphy does not argue, much less show, th at this was a hearsay stateme nt. Officer Leatherman also testifie d that he searched the CI befor e the controlled buy to ensure he did not have drugs. After the CI returned fro m the controlled buy location, Officers Leatherman a nd Wilson “collected” cocaine fr om him. ROA, Vol.
II at 24. The non-hearsay evidence shows that (1) Mr. Murphy arrived at t he first controlled buy location, (2) the CI went to the location withou t drugs, and (3) the CI

13 Mr. Murphy states it “is to be expected in a controlled buy” t hat no police officer witnesses the transaction, Aplt. Br. at 27, but he poin ts to no record evidence to support this assertion.

14 Officer Leatherman responded to the Government’s questions: Q. The controlled buy that you referenced, how did Mr. Murphy travel to that— how did he get there? A. In his silver Dodge Charger. ROA, Vol. II at 24.27 returned with drugs. Mr. Murphy points to no evidence to suppo rt an innocent explanation for these circumstances.
b. The stash location The presence of drugs at the st ash location, Mr. Murphy’s poss ession of keys to the location, and his freque nt short visits there, including the visit immediately before the second controlled buy , supported the district court’ s finding that Mr. Murphy sold drugs. Mr. Murphy’s brief states that “drugs found at the ‘stash hous e’ at the Norfolk address[,] which did not belong to Mr. Murphy, but which he had a key to and visited, cannot be linked to the tip that he was selling drugs. ” Aplt. Br. at 26. Mr. Murphy therefore does not dispute that the stash location conta ined drugs, he had keys to the property, or he visit ed it. He contends only that the drugs were not his. And we need not rely only on Mr . Murphy’s implicit concession t hat he visited and had keys to a location where dr ugs were found. Officer Leather man’s testimony also supports that Mr. Murphy v isited the stash location. First, Officer Leatherman testifi ed that the participants in t he jail phone calls discussed the presence of guns a nd drugs at the stash location. Mr. Murphy does not contest the admissib ility of Officer Leath erman’s testimony abo ut the jail phone calls. Second, non-hearsay evidence fr om the GPS tracking device show s that Mr. Murphy’s car made 45 visits to th e stash location in a 12-day p eriod. Officer28 Leatherman testified that these visits were short. He based th is testimony on a combination of his own monitori ng of the GPS data and review of data provided to him after the investigation e nded. Mr. Murphy does not contend that this testimony was based on hearsay. Third, in the recorded calls fro m jail, Mr. Murphy and his wif e talked about how often he visited the stash location. 15 And they hashed out an explanation for why Mr. Murphy had keys to the stash location—his wife suggeste d that Mr. Murphy say he had them because Mr. Mas on was going out of town. As ex plained above, Mr. Murphy has waived any argument against the admi ssibility of Off icer Leatherman’s testimony on this point. The court could consider this in formation in light of Officer Leatherman’s explanation that a stash locati on is a place a drug dealer “use [s] to store [his or her] drugs so that . . . the drugs are not at that person’s house al l the time,” id. at 21, and that a drug dealer’s v isits to a stash location would be brief, id. at 27. Mr. Murphy has not objected to this testim ony in district court or on appe al.

c. The second controlled buy Officer Leatherman testified tha t “Mr. Murphy was contacted” t o arrange a second controlled buy and that “[a ]fter the phone call was made ,” Mr. Murphy went to the stash location and then to the buy location. Id. at 35. Mr. Murphy has not

15 Officer Leatherman could not re call what Mr. Murphy said about how often he visited.29 shown this testimony was based on hearsay. The district court therefore could consider the phone call and Mr. Mu rphy’s travel from the stash location to the CI shortly after rece iving the call. Mr. Murphy argues that the hear say statements of non-testifyin g police officers provided Officer Leatherm an’s only basis for knowing M r. Murphy traveled from the stash locati on to meet the CI. See Aplt. Br. at 28. 16 The record does not support this argument. In res ponse to a question from the dist rict court, Officer Leatherman explained that he kne w Mr. Murphy traveled from the stash house “from what surveillance officers saw a nd what the tracker information was.” ROA, Vol. II at 54. As explained above, the c ourt could consider Officer Le atherman’s statements based on data from the GPS trac king device. Acc ordingly, he ha d a non-hearsay basis to testify that Mr. Murphy’ s Dodge Charger moved from the stash location to the meeting point. Although Officer Leatherman did not testify about where he was during the second controlled buy, he said tha t he searched the CI before e ach controlled buy.
See id. at 42. 17 The court could infer that O fficer Leatherman had personal

16 Mr. Murphy argues that Officer Leatherman could place Mr. Murp hy in the Dodge Charger only by relying on hearsay and contends that Mr. Mason could have been the driver “and was in fact the seller.” Aplt. Br. at 28. We agree that Officer Leatherman had no non-hearsay ba sis to know that Mr. Murphy dro ve to the second controlled buy. But evidence th at his car was involved is stil l relevant to a finding that Mr. Murphy sold drugs.

17 Officer Leatherman responded to questions from Mr. Murphy’s co unsel:30 knowledge of the location of t he second controlled buy that he could correlate with information from the GPS tracki ng device. Officer Leatherman’s testimony had a non-hearsay basis that the Dodge Charger traveled from the stas h location to a meeting location shortly after police or the CI placed a phone call to arrange the second buy. Mr. Murphy ha s not shown otherwise.
* * * * Taken together, the evidence about the fir st controlled buy, M r. Murphy’s connection to the stash location where cocaine was found, and h is car’s movements just before the second controlle d buy, permitted the district c ourt to find by a preponderance of the e vidence that Mr. Murphy sold cocaine and violated a term of his supervised release. Mr. Murph y fails to carry his burden t o show that his substantial rights were affecte d—that any error in admitting he arsay statements caused the district court to reach a result it would not otherw ise have reached. Mr. Murphy’s appeal fails a t the third prong of plain error review.

Q. . . . . Whenever the buy was s upposed to go down, right, beforehand, your reports say t hat you searched the dude, that you asked him if he had any money or dope and he didn’t and you gave him money and you sent him into the deal; right? A. Correct. ROA, Vol. II at 42.31 III. CONCLUSION Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the d istrict court’s judgment.

Entered for the Court

Scott M. Matheson, Jr. Circuit Judge