FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 26, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15024

Non-Argument Calendar

________________________

D. C. Docket No. 97-00079-CR-ODE-1-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee, 

versus 

DAVID O. SPENCE, SR., 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

 (September 26, 2005)

Before ANDERSON, CARNES, and MARCUS, Circuit Judges.

PER CURIAM:
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I. BACKGROUND

In June 1999, David O. Spence, Sr., was convicted of being a felon in

possession of firearms, in violation of 18 U.S.C. §§ 922(g) and 924(a), and was

sentenced to 92 months’ imprisonment, to be followed by 3 years’ supervised

release. According to the Pre-Sentence Investigation Report issued in relation to

this conviction, Spence fired five shots into the bedroom of his former wife,

Marcia Buford. After firing the shots, Spence pulled Buford onto the bed by her

hair and held a gun to her temple, asking Buford whether “that got [her] attention.” 

Spence then beat Buford in the face, causing Buford’s front tooth to come out of

her mouth and breaking two other teeth. After Buford went into the bathroom “to

get some of the blood and teeth out of her mouth,” Spence fired a round into the

bathroom. 

The conditions of Spence’s supervised release included, inter alia, that he

could not commit another federal, state, or local crime, and that could not leave the

Northern District of Georgia without the permission of the court or his probation

officer. The district court revoked Spence’s supervised release on grounds that

Spence had committed the felony of aggravated stalking (perpetrated against his

ex-wife, Buford) and had left the jurisdiction without permission. The district

court imposed 24 months’ imprisonment. Spence appeals.
 Under Fed.R.Crim.P. 32.1(b)(2)(C), a judge must give a defendant at a parole 1

revocation hearing “an opportunity to appear, present evidence, and question any adverse witness

unless the court determines that the interest of justice does not require the witness to appear . . .

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II. DISCUSSION

A. Spence’s Evidentiary Challenges

On appeal, Spence argues that the district court erred by admitting the

following hearsay testimony at his supervised release revocation hearing: (1) the

allegations of Marcia Buford, Spence’s former wife, relating to the aggravated

stalking charge; (2) documents relating to his transfer from Paulding County,

Georgia, to a nursing home in Macon, Georgia; and (3) an arrest warrant issued

against him for escape. Spence maintains that the district court violated his Sixth

Amendment right of confrontation by admitting this hearsay testimony. Spence

notes that in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d

177 (2004), the Supreme Court held that, under the Confrontation Clause, out-ofcourt testimonial statements by a witness may not be admitted unless the declarant

is unavailable, and the defendant previously had an opportunity to cross-examine

him. Spence argues that we should hold that Crawford applies to a supervised

release revocation hearing. Alternatively, Spence argues that we should determine

whether the district court erred by applying the balancing test outlined in United

States v. Frazier, 26 F.3d 110 (11th Cir. 1994) and Fed.R.Crim.P. 32.1(b)(2)(C).1
.”

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The applicability of evidentiary rules in supervised release revocation

proceedings is a question of law subject to de novo review. United States v.

Frazier, 26 F.3d 110, 112 (11th Cir. 1994). In Crawford, the Supreme Court held

that prior testimonial statements may be admitted only if the declarant is

unavailable, and the defendant had an earlier opportunity to cross-examine the

declarant. Crawford, 541 U.S. at 68, 124 S.Ct. at 1374. We have not addressed

the issue of whether the Supreme Court’s holding in Crawford applies to a

supervised release revocation hearing. However,

[a]lthough the Federal Rules of Evidence do not apply in supervised

release revocation hearings, the admissibility of hearsay is not

automatic. Defendants involved in revocation proceedings are entitled

to certain minimal due process requirements. Among these minimal

requirements is the right to confront and cross-examine adverse

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

revocation, incorporates these same minimal due process

requirements. Indeed, “[t]he same protections granted those facing

revocation of parole are required for those facing the revocation of

supervised release.” Thus, in 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. In addition, the hearsay

statement must be reliable.

Frazier, 26 F.3d at 114.

In Frazier, we found that although the district court had erred by failing to
We note that elsewhere in his brief, Spence’s counsel concedes that “Mr. Spence 2

violated a protective order repeatedly.” Blue Brief at 25. 

5

determine the reliability of the hearsay testimony or conduct the required

balancing test, the error was harmless because other properly considered evidence

demonstrated that Frazier had breached the terms of his supervised release. Id.

We need not determine whether Crawford applies to revocation hearings,

nor whether admission of the challenged evidence violated the balancing test set

forth in Frazier. As in Frazier, any error was harmless. Even assuming that the

evidence challenged by Spence should not have been admitted, the error was

harmless because other, uncontested evidence satisfied the elements of aggravated

stalking and established that Spence left the jurisdiction without permission. 

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Under O.C.G.A. 16-5-91(a):

A person commits the offense of aggravated stalking when such

person, in violation of a bond to keep the peace posted pursuant to

Code Section 17-6-110, temporary restraining order, temporary

protective order, permanent restraining order, permanent protective

order, preliminary injunction, good behavior bond, or permanent

injunction or condition of pretrial release, condition of probation, or

condition of parole in effect prohibiting the behavior described in this

subsection, follows, places under surveillance, or contacts another

person at or about a place or places without the consent of the other

person for the purpose of harassing and intimidating the other person.

The uncontested evidence related to stalking included the following: (1) 

Detective Lafay Streetman, who was working with Spence’s parole officer,
Streetman testified that she is the lead domestic violence investigator at the 3

Paulding County Sheriff’s Department.

Detective Streetman also testified that Buford told her that Buford was so afraid 4

that she had missed work, stayed with her parents, and had begun seeing a doctor who could

prescribe medication for her anxiety. 

6

testified that Buford delivered various documents to Streetman that Buford had

received through the mail, including legal documents that Spence had filed with

the Superior Court of Paulding County and personal letters that either contained

Spence’s signature or were signed “your husband.” Several of those documents 3

involved Spence’s attempt to divorce his ex-wife, notwithstanding the fact that the

two were already divorced. (2) Buford’s permanent protective order was admitted

without objection. That protective order stated that Spence was “enjoined and

restrained from doing or attempting to do or threatening to do any act of injuring,

molesting, maltreating, harassing, harming or abusing the petitioner in any manner

and from approaching within 200 yards of the petitioner and from approaching

within 200 yards of petitioner’s residence or place of employment.” Revocation

Hearing at 47. (3) Spence admitted that he had served Buford with legal

documents. (4) The detective testified that Spence had told her he was trying to

“resolve” his marriage with Buford. (5) The detective testified that she believed

that Buford viewed the mailings as a form of harassment , and that Buford was

“taking all this in” and appeared to be “excessively afraid.” Even assuming that 4
Rather, without pointing to any corroborating evidence, Spence claims that he left

5

in order to avoid being subject to medical procedures to which he did not consent. Spence does

not dispute the fact that he was found and arrested in Camden County, Georgia, which is outside

the jurisdiction. The district court judge found Spence’s account of why he left the nursing home

not to be credible. Revocation Hearing at 97. 

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all the evidence whose admissibility Spence challenges is inadmissable in a parole

revocation hearing, the unchallenged evidence is sufficient to justify the district

court’s finding that Spence had committed the felony of aggravated stalking. 

The court was also justified in finding that Spence had violated the terms of

his release by leaving the Northern District of Georgia without authorization from

the court or his probation officer. Although Spence challenges the admissibility of 

certain documents relating to Spence’s transfer from Paulding County custody to a

nursing home in Georgia, and to the arrest warrant issued after Spence left the

nursing home, Spence does not dispute that he left the nursing home without

authorization. The probation officer’s petition for revocation of supervised 5

release alleged that Spence was guilty of the crime of escape. As the district court

pointed out, regardless of whether Spence is guilty of the crime of escape, the

evidence above is sufficient to justify the finding that Spence left the jurisdiction

without permission of the court or his parole officer.

B. Spence’s PROTECT Act Challenges

Spence also argues that his sentence upon revocation of his supervised
To establish plain error, Spence must persuade us that (1) there was an error, (2) 6

that was plain, (3) that affected his substantial rights, and (4) that, if left uncorrected, would

seriously affect the fairness, integrity or public reputation of a judicial proceeding. See, e.g.

United States v. Humphrey, 164 F.3d 585, 588 n.3 (11th Cir. 1999). 

8

release did not comply with the requirements of the Prosecutorial Remedies and

Other Tools to End the Exploitation of Children Today Act, (the “PROTECT

Act”) Pub.L. No. 108-21, 117 Sta. 650 (2003). Specifically, Spence maintains

that the district court erred by (1) imposing a sentence above the sentencing range

set forth in U.S.S.G. § 7B1.4, which Spence argues was made mandatory by the

PROTECT Act, and (2) failing to include a written explanation for its decision to

impose the sentence.

Spence preserved his challenge to the sentence outside of the sentencing

range described in U.S.S.G. § 7B1.4, but did not object to the district court’s

failure to provide a written statement of its reasons for doing so. Therefore, we

review this issue for plain error. See United States v. Aguillard, 217 F.3d 1319,

1320 (11th Cir. 2000). We have “held that where neither the Supreme Court nor

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this Court has ever resolved an issue, and other circuits are split on it [or have

unanimously held against the appellant], there can be no plain error in regard to

that issue.” Aguillard, 217 F.3d at 1321, citing United States v. Humphrey, 164

F.3d 585, 588 (11th Cir. 1999). 
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Spence’s argument that the sentencing range described in the U.S.S.G.

§7B1.4 policy statement is now mandatory is based upon the following provisions

of the statute. Section 3553(b)(1) of Title 18 provides in relevant part: 

The court shall impose a sentence of the kind, and within the range

referred to in subsection (a)(4) unless the court finds that there exists

an aggravating or mitigating circumstance of a kind, or to a degree,

not adequately taken into consideration by the Sentencing

Commission in formulating the guidelines.

18 U.S.C. §3553(b)(1). The referenced subsection (a)(4) includes the following

provision regarding parole revocations: 

The court, in determining the particular sentence to be imposed, shall

consider – 

. . .

(B) In the case of a violation of probation or supervised release, the

applicable guidelines or policy statements issued by the Sentencing

Commission.

18 U.S.C. §3553(a)(4). In addition, Spence relies upon 18 U.S.C. §3742(e), which

requires that an appellate court review departures from the Guideline range de

novo. Finally, Spence relies upon 18 U.S.C. §3742(f)(2) which provides that an

appellate court should set aside and remand a sentence if it is outside the

“applicable guideline range and the district court failed to provide the required

statement of reasons in the order of judgment and commitment.” The “required

statement of reasons in the order of judgment and commitment” refers to 18
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U.S.C. §3553(c)(2) which provides in relevant part as follows:

Statement of Reasons for Imposing a Sentence – The court, at the

time of sentencing, shall state in open court the reasons for its

imposition of the particular sentence, and, if the sentence – 

. . . 

(2) is not of the kind, or is outside the range, described in subsection

(a)(4), the specific reason for the imposition of a sentence different

from that described, which reasons must also be stated with

specificity in the written order of judgment and commitment ...

18 U.S.C. §3553(c)(2). 

As is readily apparent from a close review of the foregoing statutory

provisions, the crucial provision upon which Spence relies to support his argument

that the policy ranges are mandatory is §3553(b)(1). In other words, only in

§3553(b)(1) is there any indication at all of a mandatory obligation. 

For two reasons, we readily conclude that there is no merit in Spence’s

argument that the sentencing ranges recommended in the Chapter 7 policy

statements are mandatory. First, the crucial language of §3553(b)(1) was not

changed by the PROTECT Act, and our pre-PROTECT Act case law was well

established that such policy ranges were merely advisory. In United States v.

Hofierka, 83 F.3d 357 (11 Cir. 1996), we rejected an argument that the then th

applicable §3553(b) imposed a mandatory obligation upon the sentencing judge to

impose a sentence within the range specified in Chapter 7 for a violation of
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probation or supervised release. The Hofierka opinion included a quotation of the

then applicable §3553(a)(4) and of the then applicable §3553(b). So far as is

relevant to the question of whether or not there is a mandatory obligation upon a

sentencing judge to impose a sentence within the ranges specified in Chapter 7 for

violation of probation or supervised release, there is absolutely no difference in

the language of the statute applied in Hofierka as compared to the currently

applicable provisions of the statute. Thus, Spence’s argument is wholly without

merit. 

A second reason for rejecting Spence’s argument that the sentencing ranges

recommended in the Chapter 7 policy statements are mandatory is based upon

United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 756-57 (2005). In that case,

the Court “severed and excised” §3553(b)(1), thus eliminating the statutory

language upon which Spence relies to support his argument. Pursuant to Booker,

even the Guidelines promulgated by the Sentencing Commission are merely

advisory, and, of course, the sentencing ranges recommended in the Chapter 7

policy statements remain merely advisory as well. 

Having disposed of Spence’s argument that the sentencing ranges
Spence’s other arguments challenging the sentence are rejected without need for 7

discussion. For example, his double counting argument is rejected because we conclude there

was no double counting. His argument for de novo review is based upon § 3742(e), which was

also “severed and excised” by Booker; his challenge to the sentence is due to be affirmed under

any conceivable standard.

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recommended by the Chapter 7 policy statements are mandatory , we turn next to

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his argument that the sentencing judge failed to state with specificity in the written

order of judgment and commitment the reasons for departing from the

recommended sentencing range. In this regard, Spence relies upon §3553(b)(1)

and §3553(c)(2).

As noted, the former section has now been “severed and excised,” and

therefore cannot support Spence’s argument. However, §3553(c)(2) remains, and

we must address Spence’s argument. As noted above, Spence did not object in the

district court to the failure to provide such a written statement, and therefore we

review only for plain error. We readily conclude that Spence cannot satisfy the

plain error standard. In analyzing the currently applicable statutory language, the

Eighth Circuit has squarely held that the Chapter 7 sentencing ranges for violation

of supervised release remain merely advisory, that a sentence above that advisory

range is not an upward departure contemplated by the statutory language, and that

the requirement of specific findings justifying departures does not apply to a

sentence above such an advisory range. United States v. White Face, 383 F.3d
We note that the sentencing judge amply explained the reasons for the sentence 8

and merely failed to include same in the written order of judgment and commitment.

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733, 737-39 (8 Cir. 2004); United States v. Martin, 371 F.3d 446, 449 (8 Cir. th th

2004). Neither this Court nor the Supreme Court has squarely addressed the

issue, although we note that the rationale of our Hofierka decision would point

toward a ruling similar to that of the Eighth Circuit. However, we need not

resolve the issue in this case because Spence cannot establish plain error. Even if

there were error, which we doubt, it is not plain or obvious. We also readily

conclude that Spence could not satisfy either the third or fourth prongs of the plain

error analysis. 

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III. CONCLUSION

Upon review of the record on appeal and upon consideration of the parties’

briefs, we discern no reversible error. Accordingly, we affirm the district court’s

revocation of Spence’s supervised release and the sentence.

AFFIRMED.