[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-10771

Non-Argument Calendar

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D.C. Docket No. 5:05-cr-00134-SLB-RRA-9

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

PAUL RAY HINES, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Alabama

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(December 23, 2013)

Before PRYOR, ANDERSON and BLACK, Circuit Judges.

PER CURIAM: 

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Paul Ray Hines appeals the district court’s revocation of his supervised 

release and imposition of an above-Guidelines 60-month sentence. While on 

supervised release, Hines was arrested in Tennessee for possession of cocaine with 

the intent to manufacture, sell, or deliver. At the revocation hearing, the district 

court admitted, over Hines’ objection, an audio recording of an interview between 

Hines’ probation officer, Matthew Worboys, and Detective Nemic, an officer who 

had knowledge of Hines’ arrest. The district court also admitted into evidence, 

without an objection, Government’s Exhibit 2, which was: (1) an arrest affidavit 

signed by Officer Hardison, the officer who transported Hines after his arrest; (2) a 

vehicle search consent form signed by Hines; (3) an evidence report; and (4) a field 

test report. Based on the evidence, the district court concluded that Hines had 

violated the conditions of his supervised release that ordered him (1) not to commit 

another federal, state, or local crime, and not to illegally possess a controlled 

substance, and (2) not to leave the Northern District of Alabama without 

permission. 

On appeal, Hines argues the district court abused its discretion by admitting 

the hearsay audio recording without first balancing Hines’ right to confront the 

adverse witness against the Government’s proffered reasons for not providing the 

opportunity for cross-examination. He also contends his 60-month sentence is 

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substantively unreasonable. After review, we affirm Hines’ revocation of 

supervised release and subsequently imposed sentence. 

Revocation of Supervised Release

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

discretion, United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 

2008), and a district court’s findings of fact for clear error. United States v. 

Almand, 992 F.2d 316, 318 (11th Cir. 1993). 

A district court may “revoke a term of supervised release, and require the 

defendant to serve in prison all or part of the term of supervised release” if the 

court “finds by a preponderance of the evidence that the defendant violated a 

condition of supervised release.” 18 U.S.C. § 3583(e)(3). However, the “full 

panoply of rights due a defendant” at trial do not apply in a supervised release 

revocation hearing. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (discussing 

a revocation of parole); see also United States v. Copeland, 20 F.3d 412, 414 (11th 

Cir. 1994) (applying Morrissey to a revocation of supervised release). Rather, a 

defendant in a supervised release revocation proceeding is entitled to only the 

minimum requirements of due process, including “the right to confront and crossexamine adverse witnesses (unless the hearing officer specifically finds good cause 

for not allowing confrontation).” Morrissey, 408 U.S. at 489. In accordance with 

this standard, Federal Rule of Criminal Procedure 32.1(b)(2)(C) provides that a 

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defendant is entitled to an opportunity to question an adverse witness in a 

revocation hearing unless the court determines the interest of justice does not 

require the witness to appear. Fed. R. Crim. P. 32.1(b)(2)(C). The revocation 

procedure should be informal and flexible enough for the court “to consider 

evidence including letters, affidavits, and other material that would not be 

admissible in an adversary criminal trial.” Morrissey, 408 U.S. at 489; see also 

Gagnon v. Scarpelli, 411 U.S. 778, 782 n.5 (1973) (“While in some cases there is 

simply no adequate alternative to live testimony . . . Morrissey [did not] intend to 

prohibit use where appropriate of the conventional substitutes for live testimony, 

including affidavits, depositions, and documentary evidence.”). 

In addition, the Federal Rules of Evidence do not apply in the context of a 

supervised release revocation hearing. United States v. Frazier, 26 F.3d 110, 114 

(11th Cir. 1994). However, hearsay statements must be reliable in order to be 

admitted. Id. In deciding whether to admit the hearsay testimony of an absent 

witness, the district court must: (1) make findings that the hearsay was reliable and 

(2) “balance the defendant’s right to confront adverse witnesses against the 

grounds asserted by the government for denying confrontation.” Id. The failure to 

make specific findings of reliability or to conduct the balancing test is error. Id.

However, the error is harmless if the properly considered evidence was sufficient 

to support the court’s conclusion. Id.

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We review the district court’s admission of the audio recording of the 

interview for abuse of discretion because Hines objected during the revocation 

hearing. See Velasquez Velasquez, 524 F.3d at 1252 (“We generally review a 

district court's revocation of supervised release for an abuse of discretion.”). We 

review Hines’s objection to Government’s Exhibit 2 for plain error because Hines 

failed to object during the revocation proceeding. See United States v. Turner, 474 

F.3d 1265, 1275 (11th Cir. 2007) (stating that plain error review is appropriate 

where a defendant fails to preserve an evidentiary ruling through contemporaneous 

objection). 

As to the audio recording, the district court abused its discretion by 

admitting this evidence without first engaging in the Frazier balancing test. See 

Frazier, 26 F.3d at 114. In response to Hines’ objection that the audio recording 

was hearsay, the district court overruled the objection and stated that Hines had an 

“uphill battle” to demonstrate to the district court that he did not possess $4,000 or 

$5,000 worth of cocaine. When Hines renewed his objection to the audio 

recording, the district court summarily overruled it without explanation. Nothing in 

the record indicates the district court engaged in a balancing test whereby it 

considered Hines’ right to confront adverse witnesses against the Government’s 

proffered reasons for not having the witness testify in court. See Frazier, 26 F.3d at 

114. 

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However, remand is not required because this error was harmless given that 

the other evidence in the record supports the district court’s finding that Hines 

possessed cocaine. See Frazier, 26 F.3d at 114. Hines has not established the 

district court plainly erred by admitting Government’s Exhibit 2. The district court 

implicitly determined the arrest affidavit was reliable by noting that (1) the arrest 

affidavit was written by Officer Hardison, who transported Hines the day of the 

arrest; (2) Officer Hardison had presumably spoken with Detectives Vrooman and 

Dotson that day; and (3) Officer Hardison had signed the affidavit on the day of the 

arrest. Hines’ argument the arrest affidavit is not reliable because Officer Hardison 

was not there for the arrest is unavailing because Hines is essentially arguing the 

affidavit is unreliable solely because it is hearsay. Hines’ similar arguments 

regarding the reliability of the vehicle consent search form and evidence report are 

also meritless because he challenges them for lack of authentication, but 

supervised release revocation hearings are informal and the Federal Rules of 

Evidence do not apply. See Frazier, 26 F.3d at 114. Moreover, Hines does not 

dispute cocaine was found in the vehicle he owned and was a passenger of at the 

time of the search. “[T]here is no requirement . . . to prove beyond a reasonable 

doubt that the defendant committed the alleged acts. All that is required is that the 

evidence reasonably satisfy the judge that the conduct of the [releasee] has not 

been as good as required by the conditions of probation.” United States v. Taylor, 

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931 F.2d 842, 848 (11th Cir. 1991) (citations omitted) (internal quotation marks 

omitted). 

The evidence was sufficient to meet the Government’s burden of reasonably 

satisfying the district court that Hines violated a condition of his supervised release 

by possessing cocaine. Thus, the decision to revoke Hines’ supervised release is 

affirmed.1

Sentence

We now turn to Hines’ argument that his 60-month sentence was 

substantively unreasonable. We review the sentence imposed following the 

revocation of supervised release for reasonableness. Velasquez Velasquez, 524 

F.3d at 1252. When reviewing a sentence for substantive reasonability, a sentence 

is substantively unreasonable if, considering the totality of the circumstances, the 

court weighed the 18 U.S.C. § 3553(a) factors unreasonably and imposed a 

sentence that did not achieve the purposes of sentencing outlined in § 3553(a). 

United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). The party 

challenging the sentence bears the burden of proving the sentence enforced was 

unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

 1 Hines’ suggestion that the district court’s refusal to grant a continuance resulted in harm 

is unfounded. Hines “made no showing that by granting a continuance any substantial favorable 

evidence would be tendered by a witness, that a witness was available and willing to testify, and 

that the denial of the continuance would materially prejudice the defendant.” United States v. 

Taylor, 931 F.2d 842, 848 (citations omitted) (internal quotation marks omitted). Without 

making that specific and overt showing, the district court did not abuse its discretion by denying 

a continuance.

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While Hines’ Sentencing Guidelines range was 37-46 months’

imprisonment, the statutorily allowed maximum was 60-months’ imprisonment 

because the imposition of Hines supervised release stemmed from a Class A 

felony. See 18 U.S.C. § 3583(b)(1), (e)(3). The district court explicitly stated it 

considered Hines’ repeated brushes with the law and felt it necessary to protect the 

public from future criminal activity. While the district court did not go through all 

of the § 3553(a) factors individually, it is under no requirement to do so. See id. at 

786. Further, the district court, despite Hines’ contention to the contrary, openly

considered his weakened physical health but still felt the need to protect the public 

outweighed any of his medical concerns. Therefore, the district court’s sentence 

was reasonable. Hines sentence is affirmed.

AFFIRMED.

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