                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-14113         ELEVENTH CIRCUIT
                                                       MARCH 15, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                  D. C. Docket No. 02-00128-CR-T-30-MAP

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

MARVIN EDWARD ROSS,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                               (March 15, 2010)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

     Marvin Edward Ross appeals the district court’s revocation of his supervised
release, pursuant to 18 U.S.C. § 3583(e)(3). On appeal, Ross argues that, in

admitting hearsay testimony at the revocation hearing, the district court failed to

balance his right to confrontation with the government’s asserted reasons for

denying confrontation. He also argues that this error was not harmless because the

hearsay testimony was unreliable and the district court based its decision solely on

the hearsay evidence.

      A district court’s decision to revoke supervised release is reviewed for abuse

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

review evidentiary decisions for abuse of discretion. United States v. Novaton, 271

F.3d 968, 1005 (11th Cir. 2001).

      “Although the Federal Rules of Evidence do not apply in supervised release

revocation hearings, . . . [d]efendants involved in revocation proceedings are

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

confront and cross-examine adverse witnesses.” Frazier, 26 F.3d at 114. “[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. Failure to perform the balancing test

violates the defendant’s due process rights. Id. “If admission of hearsay evidence

has violated due process, the defendant bears the burden of showing that the court



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explicitly relied on the information. The defendant must show (1) that the

challenged evidence is materially false or unreliable, and (2) that it actually served

as the basis for the sentence.” United States v. Taylor, 931 F.2d 842, 847 (11th

Cir. 1991) (quotation and citation omitted; emphasis in original). Thus, when the

properly considered evidence sufficiently supports the district court’s conclusion,

any failure to engage in the proper balancing test is harmless error. Frazier, 26

F.3d at 114.

      Ross correctly asserts that the district court violated his due process rights by

failing to balance his right to confrontation with the government’s asserted reason

for denying confrontation. However, we conclude that this error was harmless

because the properly considered evidence, including Ross’s own admission,

supports the district court’s conclusion that Ross committed felony battery on his

girlfriend, Larisa Faye Gamble. Accordingly, we affirm the district court’s

revocation of Ross’s supervised release.

      AFFIRMED.




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