United States v. Larry D. Reeves ( 1997 )


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  •                     United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 96-2905
    ___________
    United States of America,                   *
    *
    Appellee,                     *
    *   Appeal from the United States
    v.                                     *   District Court for the
    *   Western District of Missouri
    Larry D. Reeves,                            *
    *          [UNPUBLISHED]
    Appellant.                    *
    ___________
    Submitted: March 31, 1997
    Filed: May 1, 1997
    ___________
    Before McMILLIAN, MAGILL, and MORRIS SHEPPARD ARNOLD, Circuit                  Judges.
    ___________
    PER CURIAM.
    Larry D. Reeves appeals from the final judgment of the United States
    District   Court1   for    the    Western   District   of   Missouri,   revoking   his
    supervised release and imposing a 21-month sentence.           His appointed counsel
    has moved to withdraw and has filed a brief pursuant to Anders v.
    California, 
    386 U.S. 738
     (1967); Reeves has filed a pro se supplemental
    brief.    For the reasons discussed below, we affirm.
    1
    The Honorable D. Brook Bartlett, Chief Judge, United States
    District Court for the Western District of Missouri.
    After pleading guilty to drug and firearm charges in December 1990,
    Reeves was released from prison in March 1996 and began serving his three-
    year supervised release term.         In June 1996, the government moved to revoke
    Reeves's supervised release based on a U.S. Probation Office violation
    report alleging that on May 14 Reeves violated the mandatory condition that
    he "shall not commit another federal, state, or local crime."                      The
    violation report stated that police officers were dispatched to a Burger
    King restaurant; there, Donald B. Hiltner stated, inter alia, that Reeves
    walked up to his car and told him "to leave Denise alone and to stay away
    from her."     Hiltner told police that Reeves then pulled out a knife and
    started    cutting   him   on   the    right    side   of   his   face.   The   police
    investigation showed that Hiltner had a three-inch laceration on his face
    near his right ear.
    After a revocation hearing, at which Hiltner identified Reeves as his
    assailant and Reeves asserted an alibi defense, the district court found
    that Hiltner's testimony was basically credible.            The district court found
    that Hiltner had the opportunity to observe that the assailant was Reeves
    and that it was clearly possible for Reeves to have had time to commit the
    assault.    The district court concluded that the government established by
    a preponderance of evidence that Reeves cut Hiltner's face, which violated
    a condition of his supervised release, and warranted revocation.                   The
    district court determined that, based on a grade A violation and a Category
    II criminal history, the sentencing option was 15-21 months incarceration
    and 12 months supervised release.         Citing the seriousness of the behavior
    and the need to protect society, the district court sentenced Reeves to 21
    months imprisonment and 1 year supervised release, and assessed a $1,000
    fine.
    A decision to revoke supervised release based on a finding of a
    violation is reviewed only for abuse of discretion.               See United
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    States v. Whalen, 
    82 F.3d 528
    , 532 (1st Cir. 1996).              "[A]s in other
    contexts where a district court has discretion to take certain action based
    on its findings of fact, the court's subsidiary factfinding as to whether
    or not a violation occurred is reviewed for clear error."         
    Id.
    We conclude that the district court's findings are not clearly
    erroneous and that the district court did not abuse its discretion in
    concluding a preponderance of evidence supported a violation of a condition
    of supervised release.    See 
    18 U.S.C. § 3583
    (e)(3).       Once the district
    court determined that Hiltner was credible, his eyewitness account and
    identification of Reeves as his assailant was sufficient to allow the court
    to conclude Reeves committed a state, federal or local crime.          While Reeves
    argues that the district court erred in crediting Hiltner's testimony,
    credibility determinations are within the province of the district court
    as factfinder and are "virtually unreviewable on appeal."               See United
    States v. Adipietro, 
    983 F.2d 1468
    , 1479 (8th Cir. 1993).
    With respect to the sentence imposed upon revocation of supervised
    release, we review for abuse of discretion.     See United States v. Grimes,
    
    54 F.3d 489
    , 492 (8th Cir. 1995).    We conclude the district court did not
    abuse its discretion in sentencing Reeves at the top of the 15-21 months
    sentencing range, considering the nature of the violation and that he
    committed the violation only two months after his release.         See U.S.S.G.
    § 7B1.1(a)(1), p.s.; .3(a)(1), p.s.; .4(a), p.s.
    Having   carefully   reviewed   the   record,   including   the    revocation
    hearing transcript, we find no other nonfrivolous issue for appeal.            See
    Penson v. Ohio, 
    488 U.S. 75
    , 88 (1988).
    -3-
    Accordingly, we grant counsel's motion to withdraw, and affirm the
    judgment of the district court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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