FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 21, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-13930

Non-Argument Calendar

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D. C. Docket No. 91-00111-CR-T-27-TGW

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDDIE DAVIS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(May 21, 2009)

Before DUBINA, MARCUS and FAY, Circuit Judges.

PER CURIAM:

Appellant Eddie Davis appeals the revocation of his supervised release and
his 36-month sentence following his supervised release revocation hearing. Davis

argues (1) that the district court erred by admitting hearsay testimony at his

revocation proceeding, and (2) that his 36-month sentence is substantively

unreasonable. We affirm.

I.

Davis first contends that the district court improperly admitted Lina Lyons’s

hearsay statements and these admissions violated his due process and confrontation

clause right to confront his accuser. Davis argues that the balancing test the court

must apply here between (1) Davis’s right to confront his accuser (Lyons), and (2)

the government’s reason for not producing Lyons, must weigh in his favor because

Lyons’s statement was the only evidence that Davis committed domestic battery on

Lyons, and this charge led to the revocation of his supervised release and prison

sentence.

We review a district court’s revocation of supervised release for an abuse of

discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). Although

the Federal Rules of Evidence do not apply in supervised release revocation

proceedings, defendants are entitled to certain minimal due process requirements,

including the right to confront and cross-examine adverse witnesses. Id. at 114.

Fed.R.Crim.P. 32.1, which applies to supervised release revocation, incorporates

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these same minimal due process requirements. Frazier, 26 F.3d at 114. In deciding

whether to admit hearsay testimony, “the court must balance the defendant’s right

to confront adverse witnesses against the grounds asserted by the government for

denying confrontation.” Id. In addition, the hearsay evidence must be reliable.

Id.

We conclude from the record that the district court did not abuse its

discretion in admitting Lyons’s verbal statements to Shireling and Deputy Baker

and her April 15, 2008, written statement to Davis’s probation officer. The district

court reasonably determined that Lyons’s statements to Shireling fell within the

excited utterance exception to the hearsay rule, Fed.R.Evid. 803(2), as her

statements related to the startling event and were made under stress. In admitting

Lyons’s other statements, the court properly performed the Frazier balancing test

and also determined that Lyons’s statements were reliable. Therefore, the district

court did not abuse its discretion. Id.

II.

Davis also argues that his sentence was substantively unreasonable because

the 36-month sentence is between 4 and 12 times the advisory guideline range, and

there is nothing in the record to support the reasonableness of this variance. Davis

contends that the underlying domestic battery offense is subject to a maximum

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penalty of 12 months, so he is serving three times the state maximum for the

underlying offense. Davis further contends that, by making his three year sentence

run consecutive to the 15-year sentence he received from the state probation case,

the district court effectively gave him an 18-year sentence when the underlying

offense was only punishable by up to one-year imprisonment.

We review the district court’s ultimate sentence imposed upon revocation of

supervised release for reasonableness. United States v. Sweeting, 437 F.3d 1105,

1106–07 (11th Cir. 2006) (per curiam). A final sentence may be procedurally or

substantively unreasonable. Gall v. United States, 552 U.S. __,__, 128 S. Ct. 586,

597, 169 L. Ed. 2d 445 (2007). A sentence may be procedurally unreasonable if the

district court (1) improperly calculates the Guidelines range, (2) treats the

Guidelines as mandatory, (3) fails to consider the appropriate § 3553(a) factors,

(4) selects a sentence based on clearly erroneous facts, or (5) fails to adequately

explain the chosen sentence-including an explanation for any deviation from the

Guidelines range. Id. A district court is not required to state that it has explicitly

considered each of the § 3553 factors or to discuss each factor. United States v.

Dorman, 488 F.3d 936, 938 (11th Cir.), cert denied, ___ U.S. ___, 128 S. Ct. 427,

169 L. Ed. 2d 299 (2007). Rather, the district court’s explicit acknowledgment that

it has considered the § 3553 factors and the defendant’s arguments will suffice.

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United States v. Scott, 426 F.3d 1324, 1329–30 (11th Cir. 2005). To that end, the

district court “should set forth enough to satisfy the appellate court that he has

considered the parties’ arguments and has a reasoned basis for exercising his own

legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, ___, 127 S.

Ct. 2456, 2468, 168 L. Ed. 2d 203, 207 (2007).

If the district court’s decision is procedurally reasonable, our analysis then

turns to the substantive reasonableness of the sentence. Gall, 552 U.S. at __, 128

S. Ct. at 597. We review the substantive reasonableness of a sentence under an

abuse of discretion standard to determine whether the district judge abused his

discretion in determining that the § 3553(a) factors supported the sentence. Id. at

600. After considering the factors in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C),

(a)(2)(D), (a)(4), (a)(6), and (a)(7), a district court may revoke a term of supervised

release and impose a sentence of imprisonment if it “finds by a preponderance of

the evidence that the defendant violated a condition of supervised release.” 18

U.S.C. § 3583(e)(3). “[T]here is a range of reasonable sentences from which the

district court may choose,” and thus, our deferential reasonableness review focuses

on “whether the sentence imposed by the district court fails to achieve the purposes

of sentencing as stated in section 3553(a).” United States v. Talley, 431 F.3d 784,

788 (11th Cir. 2005). “[T]he party who challenges the sentence bears the burden of

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establishing that the sentence is unreasonable in light of both [the] record and the

factors in section 3553(a).” Id. Also, whether terms of supervised release are to be

served concurrently or consecutively is a question that 18 U.S.C. § 3584(a) entrusts

to the district court’s discretion. United States v. Quinones, 136 F.3d 1293, 1295

(11th Cir. 1998).

Davis has not established that his sentence is substantively unreasonable.

Although Davis argues he is being sentenced well beyond his exposure if

convicted of domestic violence battery, the 15-year sentence for a probation

violation was based on that state court’s discretion, unreviewable here, to

determine an appropriate sentence. Here, the district court only sentenced Davis to

36 months’ imprisonment. We must give the district court’s decision “due

deference,” Gall, 128 S.Ct. at 597, as “there is a range of reasonable sentences

from which the district court may choose.” Talley, 431 F.3d at 788. After

calculating the advisory guideline range and hearing both Davis’s and the

government’s arguments for the appropriate sentence, the district court decided an

upward variance was warranted to reflect the nature and circumstances of the case,

Davis’s background and characteristics, the need to impose a sentence that reflects

the seriousness of the offense, promote respect for the law, encourage deterrence,

and protect the public from future crimes by Davis. Also, the district court acted

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within its discretion by deciding to have Davis’s sentence run consecutive to his

15-years state sentence. See Quinones, 136 F.3d at 1295. Davis has not shown

that the district court abused its discretion in imposing a variance above the

guideline range.

For the above-stated reasons, we affirm the order of revocation and Davis’s

prison sentence.

AFFIRMED.

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