446 F.3d 688 (7th Cir. 2006), 05-1884, United States v. Kelley

Docket Nº:05-1884.
Citation:446 F.3d 688
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lamond D. KELLEY, Defendant-Appellant.
Case Date:May 02, 2006
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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446 F.3d 688 (7th Cir. 2006)

UNITED STATES of America, Plaintiff-Appellee,


Lamond D. KELLEY, Defendant-Appellant.

No. 05-1884.

United States Court of Appeals, Seventh Circuit.

May 2, 2006

Argued Sept. 22, 2005.

Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 01 CR 37—James T. Moody, Judge.

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Thomas S. Ratcliffe (argued), Office of the United States Attorney, Hammond, IN, for Plaintiff-Appellee.

Jerome T. Flynn (argued), Indiana Federal Community Defenders, Inc., Hammond, IN, for Defendant-Appellant.

Before Easterbrook, Evans, and Sykes, Circuit Judges .

Sykes, Circuit Judge.

Following a final revocation hearing, the district court found Lamond Kelley guilty of battery, aggravated assault, and unlawful use of a weapon—all Grade A violations1 of the conditions of his supervised release. These Grade A violations combined with Kelley's criminal history category of IV to produce an advisory guidelines sentencing range of 24-30 months' incarceration, U.S.S.G. § 7B1.4(a), which was limited to months by operation of 18 U.S.C. § 3583(e)(3). The district court revoked Kelley's supervised release and sentenced him to 24 months' imprisonment. Had the court held Kelley responsible only for the lesser Grade B and C violations that he admitted, his advisory sentencing range would have been 12-18 months.

On appeal, Kelley argues the district court could not have found him guilty of the Grade A violations without the hearsay-laden testimony and police report of the investigating officer. He argues that the court's consideration of that hearsay—over his timely objection—violated his Sixth Amendment right of confrontation as recently construed in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and his more limited due process right of confrontation as applicable to revocation proceedings under Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

We affirm. Supervised release revocation hearings are not criminal prosecutions, so the Sixth Amendment right of confrontation and Crawford do not apply. Kelley's due process rights were not violated because the hearsay evidence at issue was substantially reliable and its admission did not undermine the fundamental fairness of the revocation hearing.

I. Background

Lamond Kelley pleaded guilty to felony escape and was sentenced to four months' imprisonment and four months of home detention, followed by three years of supervised release. On August 25, 2003—during Kelley's term of supervised release—Officer Joseph Morency of the Burnham, Illinois police department responded to a dispatch about "a man with a gun." Officer Morency was the government's only witness at Kelley's supervised release revocation hearing and testified to what occurred when he responded to the dispatch. The district court permitted Officer Morency's testimony and also admitted his initial police report, over Kelley's

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hearsay, Fifth Amendment, and Sixth Amendment objections.

Officer Morency's testimony and police report established the following: When the officer arrived at the scene, he saw Kelley and Kelley's brother Ronald, and arrested both of them. Officer Morency then spoke with Daniel and Terra Patterson, brother and sister, who were also at the scene; the Pattersons said they had been in an altercation with Kelley and his brother, and that Kelley had punched them both in the face with closed fists. The Pattersons said Kelley's brother then started punching them, and Kelley produced a black, .22-caliber rifle from the trunk of his car, which was parked nearby. Officer Morency noted that Daniel Patterson had suffered a broken tooth.

Officer Morency asked Kelley if he could look inside the trunk of his car, and Kelley responded, "I don't care[,] I don't have the keys." The trunk lock was punched out, so Officer Morency opened the trunk with a screwdriver later at the police station. Inside the trunk he found a black, .22-caliber, Marlin semiautomatic rifle loaded with eight .22-caliber rounds; he also found a black rifle case containing numerous .22-caliber rounds. The vehicle was registered to Kelley.

Officer Morency had no personal knowledge regarding Kelley's alleged assault, battery, or display of the rifle. He testified to the Pattersons' statements, his personal observation that Daniel Patterson had suffered a broken tooth, and his discovery of the rifle and ammunition in the trunk of Kelley's car.

The district judge found Kelley had committed the Grade A violations of battery, aggravated assault, and unlawful use of a weapon as alleged in the Summary Report of Supervised Release Violations. The judge did not make explicit findings as to the reliability of the hearsay evidence or...

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