United States v. Bernard Thomas, 427 F. App'x 370

Bernard Thomas appeals the revocation of his probation and a 60-month above-guidelines sentence imposed after revocation.
The revocation and sentence were based, in part, on a district court finding that Thomas committed aggravated assault.
Thomas argued the revocation relied on hearsay introduced only to explain the petition for revocation, not to prove the violation.
Thomas claimed his admission about acid involvement did not prove he threw acid; he also argued the state indictment did not prove the assault.
The district court need not convict the underlying offense to revoke probation; revocation can be based on another offense by a preponderance of the evidence.
The appellate court affirmed, holding no abuse of discretion and no error requiring vacatur or remand.

Issue	Plaintiff's Argument	Defendant's Argument	Held
May hearsay evidence support a probation violation finding?	Thomas argues hearsay was admitted solely to justify the petition, not prove the violation.	Thomas contends the hearsay influenced the revocation improperly; admission about the incident was not proof of an assault.	Yes; the court upheld based on preponderance, not reversible error.
Is proof of an aggravated assault required by conviction to revoke probation?	Thomas challenges reliance on an indictment and admissions without conviction.	The district court may revoke for another offense by preponderance without conviction.	Revocation supported by preponderance; conviction not required.
Did the district court's handling of out-of-court statements violate due process?	Thomas argues he could not cross-examine witnesses against him about out-of-court statements.	Not addressed in favor of relief; sufficient basis for revocation existed.	No reversible error; due process not violated given the record.

United States v. Teran, 98 F.3d 831 (5th Cir. 1996) (probation revocation requires only a preponderance of evidence for new offense)
United States v. Evers, 534 F.2d 1186 (5th Cir. 1976) (revocation may occur without conviction of the new offense)
United States v. Turner, 741 F.2d 696 (5th Cir. 1984) (adequate basis for revocation; other grounds need not be addressed)