United States v. Zeno Higgs

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 22, 2025
• Docket: 25-10996
• Status: Unpublished

Opinion

USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 1 of 13

NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-10996 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

ZENO HIGGS, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 0:22-cr-60167-WPD-1 ____________________

Before NEWSOM, LAGOA, and WILSON, Circuit Judges. PER CURIAM: On December 29, 2022, Zeno Higgs pleaded guilty to a charge of knowingly and unlawfully reentering the United States after having been previously removed, in violation of 8 U.S.C. USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 2 of 13

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§ 1326(a) and (b)(1). He was sentenced to a term of twelve months and one day, plus three years of supervised release. As one of his special conditions of supervision, Higgs agreed that, if he left and reentered the United States within his “term of probation,” he would “report to the nearest U.S. Probation Office within 72 hours” of his arrival. If removed, he would not reenter “the United States without the prior written permission of the Undersecretary for Border and Transportation Security.” Higgs was released from federal custody and began his term of supervised release on Febru- ary 23, 2024. On April 18, 2024, Higgs was deported. But on September 20, 2024, a probation officer, Jason Jacoby, petitioned the district court for a warrant for Higgs’s arrest, averring that Higgs had committed six violations of his supervised- release conditions.1 Among those violations, Higgs was accused of illegal reentry after removal in violation of 8 U.S.C. § 1326(a) and (b)(1) (the same crime as his underlying offense), reentering the United States without the written permission of the Undersecre- tary for Border and Transportation Security, and failing to report to the U.S. Probation Office within 72 hours of his arrival. On March 19, 2025, the district court held a revocation hearing on these and other alleged violations. At the hearing, Higgs admitted that, after he was deported, he paid a man $3,000 to ferry him by boat from the Bahamas back to the United States, where he disembarked into the shallow waters

1 Officer Jacoby filed a superseding petition on March 6, 2025, adding a seventh

violation. USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 3 of 13

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off of Broward County, Florida, and “swam to the beach.” He tes- tified that he did not enter through a “port of entry,” checked in with no government officials, and never presented identification “to anybody.” Additionally, he admitted that he was in the United States illegally for more than 72 hours before attempting to inform authorities of his presence in the country. The district court, there- fore, found Higgs guilty of violating the terms of his supervision, including by reentering the United States illegally and without written permission and failing to report to the Probation Office upon return. The district court then revoked Higgs’s supervised release and sentenced him to 17 months’ imprisonment. Higgs now appeals the district court’s revocation of his su- pervised release and imposition of a 17-month term of imprison- ment. Higgs argues that the district court abused its discretion when it considered hearsay evidence during the revocation hearing because the court failed to conduct a balancing test under United States v. Frazier, 26 F.3d 110 (11th Cir. 1994), resulting in the district court finding him guilty of violating his terms of supervised release on the basis of unreliable evidence. Second, Higgs argues that the district court abused its discretion in crafting his above-guideline sentence because it impermissibly relied on 18 U.S.C. § 3553(a)(2)(A) and Higgs’s foreign criminal history contained in his presentence investigation report (“PSI”). After careful review, we affirm the revocation of Higgs’s supervised release and the sen- tence imposed by the district court. USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 4 of 13

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I. First, Higgs argues that the district court abused its discre- tion by relying on hearsay to find him guilty of violating his super- vised release. Higgs contends, specifically, that the district court improperly relied on the hearsay testimony of Immigration and Customs Enforcement (“ICE”) Agent Daniel Rendueles that Higgs did not have permission to reenter the United States. We review the district court’s decision to revoke a term of supervised release for an abuse of discretion. Frazier, 26 F.3d at 112. District courts are permitted to revoke terms of supervised release upon a finding by a preponderance of the evidence that the defend- ant violated a condition of his supervised release. United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010). The Federal Rules of Evidence do not apply in supervised release revocation hearings. Frazier, 26 F.3d at 114. The Sixth Amendment’s Confrontation Clause does not apply either, as the Sixth Amendment right to confront witnesses only applies to “criminal prosecutions.” See Morrissey v. Brewer, 408 U.S. 471, 489 (1972) (holding that a parole revocation hearing does not constitute a “criminal prosecution”); see also Frazier, 26 F.3d at 113–14 (hold- ing that there are no significant conceptual differences between a parole revocation hearing and the revocation of supervised re- lease); United States v. Cantellano, 430 F.3d 1142, 1146 (11th Cir. 2005) (holding that “[t]he right to confrontation is not a sentencing right,” and that the district court did not err when it considered hearsay testimony to prove a defendant’s prior convictions). USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 5 of 13

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However, just because the Federal Rules of Evidence and the Confrontation Clause do not apply to supervised release revo- cation hearings does not make the admission of hearsay testimony “automatic,” as defendants at revocation hearings are still “entitled to certain minimal due process requirements.” Frazier, 26 F.3d at 114. As such, when determining whether to admit hearsay testi- mony at supervised release revocation hearings, the district court “must balance the defendant’s right to confront adverse witnesses against the grounds asserted by the government for denying con- frontation.” Id. A district court may admit hearsay evidence at sentencing when there are “sufficient indicia of reliability, the court makes ex- plicit findings of fact as to credibility, and the defendant has an op- portunity to rebut the evidence.” United States v. Zlatogur, 271 F.3d 1025, 1031 (11th Cir. 2001) (quotation marks omitted). In order to successfully challenge a district court’s revocation of a term of su- pervised release on the basis that it relied on improper hearsay ev- idence, a 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. Ghertler, 605 F.3d 1256, 1269 (11th Cir. 2010). The defendant bears the burden of proving that the court “explicitly relied on” the information. Id. Even if the district court failed to conduct a Frazier balancing test and erred in admitting and relying on hearsay evidence, that error can be deemed harmless if the court properly considered ev- idence—including the defendant’s own statements—that USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 6 of 13

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overwhelmingly demonstrated that the defendant breached the terms of his supervised release. Frazier, 26 F.3d at 114; see also Ghertler, 605 F.3d at 1270 (considering the defendant’s testimony when analyzing whether sufficient evidence supported the district court’s sentencing determinations); United States v. Moore, 22 F.4th 1258, 1270 n.11 (11th Cir. 2022) (holding that regardless of whether the district court erred in admitting hearsay testimony at the de- fendant’s supervised release revocation hearing, such error was harmless because the court properly considered evidence that overwhelmingly demonstrated that the defendant breached his su- pervised release terms). Here, it appears that the district court did err in failing to conduct a Frazier balancing test, instead overruling Higgs’s hearsay objection on the ground that “hearsay is admissible on a violation of supervised release.” However, we conclude that this error was harmless because Higgs has not met his burden of showing that the district court “explicitly relied on” ICE Agent Rendueles’s testi- mony when it found Higgs guilty of violating the terms of his su- pervised release. See Ghertler, 605 F.3d at 1269. The record, instead, reflects that the district court relied on Higgs’s own testimony, in which Higgs admitted that he paid a man $3,000 to bring him to the United States by boat, got off near the beach, and swam to shore, bypassing authorities. The court also noted that Higgs ad- mitted to being in the United States illegally for more than 72 hours before attempting to turn himself in. Based on Higgs’s testimony, the district court found that there was sufficient circumstantial ev- idence to support a finding that Higgs breached the terms of his USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 7 of 13

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supervised release. Because any Frazier error was harmless, and because the evidence overwhelmingly demonstrated that Higgs did, in fact, breach the terms of his supervised release, we conclude that the district court did not abuse its discretion when it found Higgs guilty of violating his supervised release. II. Second, Higgs challenges the reasonableness of his revoca- tion sentence. He argues that the district court “focus[ed] exclu- sively on retributive concerns,” in violation of Esteras v. United States, 145 S. Ct. 2031 (2025), when it upwardly varied to impose a 17-month prison sentence here. We generally review the reasonableness of a sentence for abuse of discretion, meaning we will disturb the sentence only if the district court (1) failed to afford consideration to relevant fac- tors that were due significant weight, (2) gave significant weight to an improper or irrelevant factor, or (3) committed a clear error of judgment in considering the proper factors.2 United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc). The court “commits a clear error of judgment when it weighs the § 3553(a) sentencing factors unreasonably.” United States v. Butler, 39 F.4th 1349, 1355 (11th Cir. 2022). Although the district court is required to consider all relevant § 3553(a) factors, “the weight given to each factor is committed to the sound discretion of the district court,” and the

2 This same standard applies to our review of a sentence imposed upon revo-

cation of supervised release. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 8 of 13

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court may attach great weight to one factor over others. Id. The court does not have to explicitly state on the record that it has con- sidered all the factors or expressly discuss each of them. United States v. Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir. 2006). Where a defendant fails to clearly state the grounds for an objection in the district court, he waives the objection on appeal, and we review only for plain error. United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). When we review the reasonableness of a sentence imposed upon revocation of supervised release, we first evaluate whether “the district court committed any significant procedural error, such as miscalculating the advisory guideline range, treating the Sen- tencing Guidelines as mandatory, failing to consider the 18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence.” United States v. Trailer, 827 F.3d 933, 936 (11th Cir. 2016) (footnote omit- ted). Next, we examine “whether the sentence is substantively rea- sonable in light of the totality of the circumstances and the § 3553(a) factors.” Id. Section § 3553(a)’s “overarching” instruction is that any sen- tence must be “sufficient, but not greater than necessary, to comply with the purposes” listed in § 3553(a)(2). 18 U.S.C. § 3553(a); Kim- brough v. United States, 552 U.S. 85, 101 (2007). These purposes in- clude the need to “reflect the seriousness of the offense,” deter criminal conduct, and “protect the public from” the defendant’s fu- ture crimes. 18 U.S.C. § 3553(a)(2). In imposing a particular USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 9 of 13

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sentence, the court must also consider the offense’s “nature and circumstances,” the defendant’s “history and characteristics,” the applicable guideline range, Sentencing Commission policy state- ments, and “the need to avoid unwarranted sentence dispari- ties among defendants with similar records who have been found guilty of similar conduct.” Id. § 3553(a)(1), (4)–(6). “A variance is a sentence imposed that is outside the Guide- lines Manual guideline range.” United States v. Hippolyte, 712 F.3d 535, 541 (11th Cir. 2013). If a district court imposes an upward var- iance, “it must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (quotation marks omitted). An upward variance that is “well below the statutory maximum” indicates that the variance is reasonable. United States v. Riley, 995 F.3d 1272, 1278 (11th Cir. 2021) (quotation marks omitted). “[H]ow bad a repeat offender a defendant is matters greatly for purposes of sentencing,” and we have recognized that upward variances are justified when based on a defendant’s tendency to engage in recidivism. Id. at 1279–80 (col- lecting cases). The failure to object to factual allegations within a PSI ad- mits those facts for the purposes of sentencing. United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006). As such, a sentencing court’s factual findings can be based on undisputed facts within a PSI. United States v. Bennett, 472 F.3d 825, 832 (11th Cir. 2006). USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 10 of 13

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In Esteras, the Supreme Court recently clarified that a district court may not consider § 3553(a)(2)(A), or “the need to exact retri- bution for the defendant’s underlying crime,” when revoking a de- fendant’s term of supervised release. Esteras, 145 S. Ct. at 2040. A court may consider the needs to deter, incapacitate, and rehabili- tate, but it “cannot consider the nature and circumstances of the [underlying] offense as relevant to § 3553(a)(2)(A)’s retributive fo- cus.” Id. at 2043. Notably, Esteras did not consider whether retri- bution for the violation of the conditions of supervised release can factor into a revocation decision. See id. at 2040 n.5 (“tak[ing] no position” on whether “retribution for the violation of the conditions of the supervised release . . . . is a permissible consideration” in revoca- tion proceedings). The Supreme Court also made a “few observa- tions” regarding appellate review of this issue, noting that if the de- fendant failed to make a district court aware that it may be imper- missibly relying on § 3553(a)(2)(A), then the defendant’s appeal of the issue is governed by plain-error review. Id. at 2045. Under plain-error review, the district court’s revocation order should be affirmed “unless it is ‘clear’ or ‘obvious’ that the district court actu- ally relied on § 3553(a)(2)(A)—because it did so expressly or by un- mistakable implication.” Id. Here, Higgs did not raise the specific objection below that the district court considered an impermissible § 3553(a) factor, so we review for plain error. We conclude that the district court did not plainly err because it is neither “clear” nor “obvious” from the record that the district court “actually relied on” § 3553(a)(2)(A) when crafting Higgs’s sentence. Esteras, 145 S. Ct. at 2045. USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 11 of 13

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In explaining its sentence at the revocation hearing, the dis- trict court considered mitigating circumstances, including the fact that Higgs has a history of mental illness. The district court then walked through Higgs’s many arrests and convictions and his five deportations from the United States. The court noted that Higgs has a history of reoffending, “of not following the rules, [and] of resisting arrest.” The court added that “a departure up to 17 months is justified based on [Higgs’s] criminal activity and his lack of respect for the law and to follow the rules.” According to Higgs, his revocation sentence was unreason- able and must be vacated because the district court’s comments quoted above reflect that the court was “focused on backward- looking, retributive factors, and the Supreme Court has recently prohibited that approach.” By contrast, the government argues that the district court commented on Higgs’s history of criminality to “highlight the need[ ] for” the “forward-looking § 3553(a) goals” of “deterrence and incapacitation,” not a general need to reflect the seriousness of the offense, to promote respect for the law, or to provide just punishment for the offense under § 3553(a)(2)(A). On review of the record, it’s not clear that the government’s read of the transcript is right, but nor is there a “clear” indication that the district court “actually relied on” the factors listed in § 3553(a)(2)(A) “either expressly or by unmistakable implication.” Esteras, 145 S. Ct. at 2045. That is enough to doom Higgs’s argu- ment on plain-error review. What’s more, even if the district court did consider the need to exact retribution, it may have done so not USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 12 of 13

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to punish Higgs for his underlying criminal conviction, but to “sanction [him] for failing to abide by the conditions of the court- ordered supervision” (i.e., for reentering the United States without permission and failing to report to a U.S. Probation Office upon reentering)—an issue on which the Supreme Court has taken no position. Id. at 2040 n.5. In any event, on this record and on plain- error review, we cannot say that the district court’s revocation of Higgs’s supervised release was “clear[ly]” or “obvious[ly]” reliant on § 3553(a)(2)(A), as opposed to the “forward-looking ends” of de- terrence or incapacitation. Id. at 2041, 2045. Therefore, Higgs has failed to show that the district court plainly erred under Esteras. Finally, Higgs argues that his revocation sentence must also be vacated because the district court improperly relied on “unreli- able[ ] foreign priors from [his] 2022 PSI.” However, the district court was allowed to consider Higgs’s foreign criminal history as contained in his PSI, because, as Higgs concedes on appeal, he failed to object to those facts at his original sentencing, so the facts were deemed admitted. See Wade, 458 F.3d at 1277 (“It is the law of this circuit that a failure to object to allegations of fact in a PSI admits those facts for sentencing purposes.”). Higgs insists that he did object to the district court’s reliance on his Bahamian priors at his revocation sentencing, but he offers no case law supporting his view that a district court abuses its discretion by considering previ- ously admitted facts at a revocation hearing. Regardless, “reliable hearsay can be considered during sentencing,” Zlatogur, 271 F.3d at 1031, and we think facts that a defendant has himself admitted are sufficiently reliable for these purposes, see United States v. Wilson, USCA11 Case: 25-10996 Document: 39-1 Date Filed: 09/22/2025 Page: 13 of 13

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183 F.3d 1291, 1301 (11th Cir.1999) (“A court may consider any in- formation (including hearsay), regardless of its admissibility at trial, in determining whether factors exist that would enhance a defend- ant’s sentence, provided that the information is sufficiently relia- ble.”); cf. United States v. Milano, 32 F.3d 1499, 1501 (11th Cir. 1994) (holding that the district court did not err “by refusing to consider [the appellant’s] objections to the PSI” at the probation revocation hearing because the appellant “elected not to make clear and spe- cific objections to information in the PSI . . . . at the initial sentenc- ing hearing”).3 We thus conclude that the district court did not abuse its discretion when it considered Higgs’s foreign criminal his- tory as detailed in the PSI. The district court’s imposition of an above Guideline sen- tence is supported by sufficiently compelling reasons, and it is nei- ther procedurally nor substantively unreasonable. Therefore, we affirm the revocation of Higgs’s supervised release and the sen- tence imposed by the district court. AFFIRMED.

3 “The analysis of the revocation proceedings relating to probation and super-

vised release are essentially the same.” United States v. Mitsven, 452 F.3d 1264, 1266 n.1 (11th Cir. 2006) (internal quotations omitted).