United States v. Cortes-Zuniga

Opinion

UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

___________

No. 97-40697 Summary Calendar ____________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CARLOS ALBERTO CORTES-ZUNIGA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas USDC No. B-96-CR-108-1

April 27, 1998 Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Carlos Alberto Cortes-Zuniga appeals the district court’s

judgment revoking his probation. Cortes-Zuniga argues that the

district court’s revocation of his probation violated his Fifth

Amendment right to due process, his Sixth Amendment right of

confrontation, and was not supported by sufficient evidence.

This court reviews the sufficiency of the evidence supporting

a district court’s decision to revoke probation for abuse of

discretion. United States v. Teran, 98 F.3d 831, 836 (5th Cir.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. 1996). The district court must find a probation violation based on

a preponderance of the evidence. Id. Constitutional challenges

are reviewed de novo. United States v. Grandlund, 71 F.3d 507, 509

(5th Cir. 1995).

There was no evidence introduced at the revocation hearing.

The probation officer did not testify. The laboratory report of

the breathalyser test was not introduced into evidence. In short,

there was no evidence at all introduced at the revocation hearing

to prove the allegations of probation violations in the petition.

Cortes-Zuniga did not admit to any of the allegations but pleaded

not true. The district court did not conduct an inquiry into the

existence of good cause which would abrogate Cortes-Zuniga’s right

to confrontation. Cortes-Zuniga’s probation was revoked solely on

the allegations in the petition.

We hold that there was insufficient evidence of a probation

violation and that Cortes-Zuniga’s due process and confrontation

rights were violated. The district court’s judgment revoking

Cortes-Zuniga’s probation and imposing a nine-month sentence is

REVERSED, and this case is REMANDED for a new revocation hearing.

We do not address Cortes-Zuniga’s sentencing issues, and we DENY AS

MOOT the government’s motion to supplement the record.

REVERSED AND REMANDED.