FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 19, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-11536

Non-Argument Calendar

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D. C. Docket No. 08-20062-TP-KMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DEVIN SHERMAN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(August 19, 2009)

Before BIRCH, BLACK and HULL, Circuit Judges.

PER CURIAM:
Devin Sherman appeals his 18-month, within-range sentence, imposed after

he was found to have violated the terms of his supervised release by committing

the offense of aggravated battery. Sherman argues (1) the district court violated his

Sixth Amendment rights and erred by admitting hearsay statements into evidence,

(2) the court abused its discretion in revoking his supervised release, because the

evidence did not prove by a preponderance of the evidence that Sherman

committed a battery, and (3) his sentence was procedurally and substantively

unreasonable. We address these issues in turn and affirm the revocation of

Sherman’s supervised release and his sentence.

I.

Sherman contends his Sixth Amendment rights were violated when the

district court admitted hearsay statements into evidence during his supervised

release revocation hearing. He also maintains the statements constituted “classic

testimonial hearsay statements” that are inadmissible under Crawford v.

Washington, 124 S. Ct. 1354, 1374 (2004). Although a district court’s evidentiary

decisions are ordinarily reviewed for abuse of discretion, United States v.

Novation, 271 F.3d 968, 1005 (11th Cir. 2001), we review for plain error because

Sherman failed to raise this objection in the district court, see United States v.

Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005).

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We have held the Federal Rules of Evidence do not apply in supervised

release revocation proceedings. United States v. Frazier, 26 F.3d 110, 114 (11th

Cir. 1994). However, “[d]efendants involved in revocation proceedings are

entitled to certain minimal due process requirements,” including “the right to

confront and cross-examine adverse witnesses.” Id. “[I]n deciding whether or not

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 statements must be reliable.”

Id.

The Crawford holding has not been extended by the Supreme Court nor this

Circuit to apply to supervised release revocation proceedings, but even if Crawford

does apply to such proceedings, Sherman had the opportunity to confront

Thompson when she was called on to testify at the revocation proceeding. Further,

the Federal Rules of Evidence did not apply to Sherman’s supervised release

revocation proceeding and the district court explained why it found Thompson’s

hearsay statements reliable. See Frazier, 26 F.3d at 114. Accordingly, we

conclude the district court did not violate Sherman’s Sixth Amendment rights nor

plainly err in admitting Thompson’s and her mother’s prior hearsay statements into

evidence.

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II.

Sherman argues the district court abused its discretion in revoking his

supervised release because the evidence did not prove by a preponderance of the

evidence that he committed a battery. See id. at 112 (“A district court’s revocation

of supervised release is reviewed under an abuse of discretion standard.”). Under

18 U.S.C. § 3583(e), a district court may revoke a term of supervised release if it

finds “by a preponderance of the evidence that a defendant has violated a condition

of supervised release.” United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir.

2006). We afford the district court substantial deference “in reaching credibility

determinations with respect to witness testimony.” United States v. Clay, 483 F.3d

739, 744 (11th Cir. 2007). Furthermore, “when a defendant elects to testify, he

subjects himself to an evaluation of his credibility by the trier of fact and runs the

risk that he might bolster the government’s case rather than help his own cause.”

United States v. Valquez, 53 F.3d 1216, 1226 (11th Cir. 1995).

The district court determined it was more likely than not that Thompson was

telling the truth when she told police that Sherman attacked her and that her

contrary testimony at the supervised release revocation hearing was not credible.

The court supported his credibility findings by observing that a statement made at

or about the time of the incident is more likely to be true than it is to be fabricated

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and Sherman has a propensity toward violence, as evidenced by his prior

convictions. Additionally, Thompson’s mother gave an independent account that

she saw Thompson and Sherman engaged in a physical altercation. The district

court was entitled to disbelieve Sherman’s testimony, see id., and we must give

that credibility determination substantial deference, see Clay, 483 F.3d at 744. For

these reasons, we conclude the district court did not abuse its discretion in

revoking Sherman’s supervised release.

III.

Finally, Sherman argues his sentence is procedurally and substantively

unreasonable. See Sweeting, 437 F.3d at 1106-07 (holding a sentence imposed

upon revocation of supervised release is reviewed for reasonableness). We must

first ensure “the district court committed no significant procedural error, such as

. . . failing to consider the § 3553(a) factors.” Gall v. United States, 128 S. Ct. 586,

597; See also 18 U.S.C. § 3583(e) (providing that a district court may revoke a

term of supervised release and impose a sentence of imprisonment for the violation

after considering the factors set forth in 18 U.S.C. § 3553(a)(l), (a)(2)(B)-(D), and

(a)(4)-(7) ). The district court need not “state on the record that it has explicitly

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 These factors include: (1) the nature and circumstances of the offense and the history 1

and characteristic of the defendant; (2) the need for the sentence imposed to (a) afford adequate

deterrence to criminal conduct, (b) protect the public from further crimes of the defendant, and

(c) provide the defendant with needed educational or vocational training, medical care, or other

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considered each of the § 3553(a) factors or . . . discuss each of the § 3553(a)

factors,” United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005), but the

judge “ should set forth enough to satisfy the appellate court that he considered the

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

decisionmaking authority,” United States v. Rita, 127 S. Ct. 2456, 2468 (2007).

Nonetheless, when a judge decides simply to apply the Guidelines to a

particular case, doing so will not necessarily require lengthy

explanation. Circumstances may well make clear that the judge rests

his decision upon the Commission’s own reasoning that the

Guidelines sentence is a proper sentence (in terms of § 3353(a) [sic]

and other congressional mandates) in the typical case, and that the

judge has found that the case before him is typical.

Id.

After we determine the district court’s sentencing decision is procedurally

sound, we then review the substantive reasonableness of the sentence for abuse of

discretion. Gall, 128 S. Ct. at 597. “[T]here is a range of reasonable sentences

from which the district court may choose,” and the burden of establishing that the

sentence is unreasonable in light of the record and the § 3553(a) factors lies with

the party challenging the sentence. United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005). While a sentence within the Guidelines range is not per se

correctional treatment; (3) the sentencing range established by the Guidelines; (4) the pertinent

policy statements of the Sentencing Commission; (5) the need to avoid unwarranted disparities;

and (6) the need to provide restitution to any victims of the offense. 18 U.S.C. § 3553(a)(1),

(a)(2)(B)-(D), (a)(4)-(7).

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reasonable, we ordinarily expect such a sentence to be reasonable. Id. at 787.

“The weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court, and we will not substitute our judgment in

weighing the relevant factors.” United States v. Amedeo, 487 F.3d 823, 832 (11th

Cir. 2007) (internal quotation marks omitted).

The district court did not procedurally err in sentencing Sherman. Our

review of the record indicates the court considered the § 3553(a) factors in

determining Sherman’s sentence because it (1) stated it sentenced Sherman

“[p]ursuant to the Sentencing Reform Act of 1984,” which includes 18 U.S.C.

§ 3553, (2) heard the evidence concerning the nature and history of the offense and

considered Sherman’s history and characteristics, particularly his propensity

toward violence, (3) took into account the accurately calculated Guidelines range

and determined a sentence within that range would be appropriate, and

(4) considered the need to provide Sherman with needed educational training and

correctional treatment. It is apparent the district judge had “a reasoned basis for

exercising his own legal decisionmaking authority,” and he was entitled to rest his

decision upon the Sentencing Commission’s reasoning that the Guidelines sentence

was a proper sentence without giving a lengthy explanation. See Rita, 127 S. Ct. at

2468.

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We also conclude the district court took into account any mitigating

circumstances and did not impose a substantively unreasonable sentence. The

record indicates the court gave Sherman an opportunity to make a statement before

he was sentenced and stated it considered the statements of all of the parties before

it imposed the sentence. We will not substitute our judgment for the district court,

which weighed the relevant factors. See Amedeo, 487 F.3d at 832. For these

reasons, we conclude the district court did not abuse its discretion in sentencing

Sherman to a within-range sentence of 18 months.

Accordingly, we affirm the revocation of Sherman’s supervised release and

his sentence.

AFFIRMED.

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