United States v. Brian Rogers

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 20, 2020
• Docket: 19-4476
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4476

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRIAN KEITH ROGERS,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:10-cr-00235-FDW-DCK-1)

Submitted: April 16, 2020 Decided: April 20, 2020

Before GREGORY, Chief Judge, and WYNN and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Brian Keith Rogers appeals the district court’s judgment revoking his previously

imposed term of supervised release. * The lone issue on appeal is whether the district court

abused its discretion in finding that Rogers committed the alleged Grade A violation. We

affirm.

We evaluate a district court’s overall decision to revoke supervised release for an

abuse of discretion and review for clear error the relevant factual findings underpinning

that determination. United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015). A court

may revoke supervised release if it “finds by a preponderance of the evidence that the

defendant violated a condition of supervised release[.]” 18 U.S.C. § 3583(e)(3) (2018).

Because the standard of proof is lower than that required for a criminal conviction, the

district court may find that the defendant has violated a condition of his supervised release

based on its own finding of new criminal conduct, even if the defendant is acquitted on

criminal charges arising from the same conduct or if the charges against him are dropped.

United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991); see U.S. Sentencing

Guidelines § 7B1.1, p.s., cmt. n.1 (2011).

We conclude the district court did not abuse its discretion when it determined that

the Government established, by a preponderance of the evidence, that Rogers committed

the challenged “new law” violation alleged in the Revocation Petition, to wit: possession

* The district court imposed a 24-month custodial term of imprisonment, which Rogers does not contest on appeal.

2 with intent to distribute fentanyl. In reaching this conclusion, the district court credited the

in-person testimony of the other individual involved in the intercepted drug transaction,

who offered clear and unequivocal testimony establishing his intent to purchase fentanyl

from Rogers. Credibility determinations made by the district court at revocation hearings

rarely are reversed on appeal. Accord United States v. Cates, 613 F.3d 856, 858 (8th Cir.

2010) (conducting clear error review of revocation decision and recognizing that “[w]itness

credibility is quintessentially a judgment call and virtually unassailable on appeal” (internal

quotation marks omitted)). Upon review of the transcript of the revocation hearing, we

find no clear error in either the court’s rationale for crediting the adverse testimony or for

rejecting Rogers’ contrary testimony.

On this record, we conclude the district court did not abuse its discretion in

determining that Rogers committed the alleged Grade A supervised release violation.

Accordingly, we affirm the revocation judgment. We grant Rogers’ motion for leave to

file a physical exhibit. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before this court and argument would

not aid the decisional process.

AFFIRMED