United States v. Tarence Donyae Mitchel

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 29, 2021
• Docket: 21-10980
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 21-10980 Non-Argument Calendar ________________________

D.C. Docket No. 1:10-cr-00006-JB-C-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TARENCE DONYAE MITCHELL,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Alabama ________________________

(September 29, 2021)

Before NEWSOM, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 21-10980 Date Filed: 09/29/2021 Page: 2 of 6

Tarence Mitchell appeals the district court’s order revoking his supervised

release after it found that he had committed second-degree assault under Alabama

law and possessed a firearm, all in violation of the conditions of his supervised

release. On appeal, Mitchell argues that the court abused its discretion in revoking

his supervised release because its findings that he committed second-degree assault

and possessed a firearm during a fight are not supported by a preponderance of the

evidence. Mitchell argues that one witness’s unbiased testimony at the revocation

hearing showed that he did not have a weapon when he arrived at the scene, that

the shooting victim was the instigator, and that he fired the gun into the ground to

prevent injury, such that the victim’s injuries were accidental.

We review the revocation of supervised release for an abuse of discretion,

United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014), and we will

not overturn a district court’s factual findings unless they are clearly erroneous,

United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). “A district court

abuses its discretion if it applies an incorrect legal standard, follows improper

procedures in making the determination, or makes findings of fact that are clearly

erroneous.” United States v. Khan, 794 F.3d 1288, 1293 (11th Cir. 2015).

A finding is clearly erroneous when we are “left with a definite and firm

conviction that a mistake has been committed.” United States v. Almedina, 686

F.3d 1312, 1315 (11th Cir. 2012) (citation omitted). When faced with conflicting

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testimony, we typically defer to the credibility determinations of the district court

because the district court “personally observes the testimony and is thus in a better

position than the reviewing court to assess the credibility of witnesses.” United

States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). A district court may

revoke a defendant’s supervised release if it finds by a preponderance of the

evidence that he violated the conditions of his supervised release. 18 U.S.C. §

3583(e)(3); see also United States v. Trainor, 376 F.3d 1325, 1331 (11th Cir.

2004) (explaining that preponderance of the evidence means more likely true than

not).

Second-degree assault can occur in Alabama when a person (1) causes

serious physical injury to another with the intent to do so; (2) causes physical

injury to another by means of a deadly weapon with the intent to do so; or

(3) recklessly causes physical injury to another with a deadly weapon. Ala. Code

§ 13A-6-21(a); see also id. § 13A-1-2(7) (defining deadly weapon to include a

firearm). Alabama “law infers from the use of a deadly weapon an intent to kill or

to do grievous bodily harm.” Fulghum v. State, 277 So. 2d 886, 890 (Ala. 1973).

A person acts recklessly when he “is aware of and consciously disregards a

substantial and unjustifiable risk that the result will occur or that the circumstance

exists.” Ala. Code § 13A-2-2(3).

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Both federal and Alabama law prohibit a felon from possessing a firearm.

18 U.S.C. § 922(g)(1); Ala. Code § 13A-11-72(a). Possession can be actual or

constructive, the latter of which occurs when a defendant has the power and

intention to exercise dominion or control over the firearm. United States v. Perez,

661 F.3d 568, 576 (11th Cir. 2011); United States v. Gunn, 369 F.3d 1229, 1235

(11th Cir. 2004). In limited circumstances, self-defense may be a valid defense to

a felon-in-possession charge. United States v. Vereen, 920 F.3d 1300, 1310-11

(11th Cir. 2019) (stating that, among other things, to establish a necessity defense

to a § 922(g)(1) charge, a defendant must show that he “did not negligently or

recklessly place himself in a situation where he would be forced to engage in

criminal conduct” (citation omitted)); Diggs v. State, 168 So. 3d 156, 162

(Ala. Crim. App. 2014).

Here, the district court did not abuse its discretion in revoking Mitchell’s

supervised release. First, the court did not clearly err in finding that Mitchell had

committed second-degree assault under Alabama law. See Almedina, 686 F.3d at

1315. Because the district court was confronted with conflicting testimony, we

typically defer to its credibility determinations. See Ramirez-Chilel, 289 F.3d at

789. As the district court noted, even fully crediting Mitchell’s own testimony, the

facts still support its ruling. Mitchell admitted to purposefully firing the gun near

the victim, consciously disregarding the risk that he could injure the victim by

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discharging the gun so close to him. See Fulghum, 277 So. 2d at 890; Ala. Code

§§ 13A-2-2(3), 13A-6-21(a)(3). Thus, even if the shooting was purely accidental,

as Mitchell argues, his actions, combined with the injuries to the victim,

constituted assault, as charged in the petition. See Ala. Code §§ 13A-2-2(3), 13A-

6-21(a)(3).

Second, the district court also did not clearly err in finding that Mitchell

possessed a firearm. See Almedina, 686 F.3d at 1315. Even crediting Mitchell’s

testimony, Mitchell had constructive possession of the gun because he fought the

victim for control of it and overpowered him to the point that, by his own

admission, Mitchell had dominion over the gun and caused it to fire. See Gunn,

369 F.3d at 1235. Because Mitchell constructively possessed the gun, his

contention that he did not possess the gun before the fight and that one witness did

not know where the gun came from are immaterial. The district court, therefore,

had a reasoned basis to find that Mitchell possessed a firearm, which violated the

conditions of his supervised release and constituted a federal and state crime. See

Almendina, 686 F.3d at 1315. Insofar as Mitchell argues that his possession of the

gun was in self-defense, Mitchell chose to meet the victim, whom he knew was

upset with him, instead of staying away. Vereen, 920 F.3d at 1310-11. Moreover,

Mitchell has not shown that the district court’s rejection of his self-defense

argument was so improbable as to be clearly erroneous.

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Therefore, the district court had a sufficient basis to find that Mitchell

violated the conditions of his supervised release by possessing a firearm and by

committing the Alabama state offense of second-degree assault. Because the

district court applied the correct legal standard and did not make any clearly

erroneous factual findings, it did not abuse its discretion. Accordingly, we affirm.

AFFIRMED.