United States v. Mark Patillo , 660 F. App'x 223 ( 2016 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 16-4032
    UNITED STATES OF AMERICA,
    Plaintiff − Appellee,
    v.
    MARK A. PATILLO,
    Defendant − Appellant.
    Appeal from the United States District Court for the Eastern
    District of Virginia, at Richmond.    Robert E. Payne, Senior
    District Judge. (3:08−cr−00129−REP−1)
    Submitted:   May 27, 2016                  Decided:   September 15, 2016
    Before GREGORY,    Chief    Judge,   and    KEENAN    and   DIAZ,   Circuit
    Judges.
    Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
    in which Chief Judge Gregory and Judge Keenen joined.
    Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia,
    Robert J. Wagner, Assistant Federal Public Defender, Paul E.
    Shelton, Research and Writing Attorney, OFFICE OF THE FEDERAL
    PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Dana J.
    Boente, United States Attorney, Alexandria, Virginia, S. David
    Schiller, Assistant United States Attorney, OFFICE OF THE UNITED
    STATES ATTORNEY, Richmond, Virginia, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    DIAZ, Circuit Judge:
    Mark Patillo appeals the district court’s judgment revoking
    his supervised release and sentencing him to twenty-four months
    in prison, followed by a period of four years of supervised
    release.     Patillo contends there was insufficient evidence to
    find that he violated the terms of his supervised release by
    committing      the      offense        of    felony          eluding    in    violation     of
    Virginia Code Section 46.2-817(B).                          For the reasons that follow,
    we affirm.
    I.
    A.
    A    federal        grand    jury       returned          a   four-count       indictment
    charging     Patillo       with     possession              with   intent      to   distribute
    heroin, in violation of 
    21 U.S.C. § 841
    ; possession with intent
    to   distribute       marijuana,         in       violation        of   
    21 U.S.C. § 841
    ;
    possession of a firearm in furtherance of a drug trafficking
    crime, in violation of 
    18 U.S.C. § 924
    (c); and possession of a
    firearm    by   a     felon       and    user          of    controlled       substances,    in
    violation of 
    18 U.S.C. § 922
    (g)(1), (3).                           Patillo pled guilty to
    possession with intent to distribute heroin and possession of a
    firearm    in   furtherance             of    a    drug       trafficking       crime.      The
    district     court        sentenced          Patillo          to        forty-one        months’
    incarceration       on    Count     One       and       a    consecutive       sixty    months’
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    incarceration on Count Three, to be followed by a five-year term
    of supervised release.                 On August 14, 2015, Patillo began his
    ordered period of supervised release.                          The supervised release
    term     was      conditioned       on    Patillo’s           not   committing     another
    federal, state, or local crime, or using a controlled substance.
    On      November       18,     2015,   at    approximately          10:00     p.m.,
    Detective         John     Flores   was   driving        an    unmarked    Chevy    Impala
    southbound on Ford Avenue in Richmond, Virginia.                            After Flores
    crossed the intersection of Ford Avenue and Spotsylvania Street,
    a Ford Explorer attempted to pass his vehicle on the right while
    traveling         in   a   designated     parking    lane.          The   driver   of     the
    Explorer, later identified as Patillo, braked to avoid hitting a
    parked      car    and     abruptly    stopped     his    vehicle     fifteen      feet   in
    front of Flores’s police cruiser.
    Both vehicles came to a stop on Ford Avenue, just south of
    the intersection where Spotsylvania meets Ford Avenue from the
    west forming a dead end or T-intersection.                          Approximately five
    seconds later, Patillo shifted his vehicle into reverse and sped
    down Ford Avenue.              When Patillo reached the intersection, he
    turned      onto       Spotsylvania,      still     in        reverse,    and    continued
    backing down the street for forty to fifty yards.
    Detective Flores activated his police cruiser’s lights and
    siren.      Without losing sight of Patillo, Flores pursued him by
    similarly reversing his police cruiser down Ford Avenue, but
    3
    instead of turning onto Spotsylvania as Patillo had done, Flores
    drove slightly past the intersection.
    By the time Flores turned right onto Spotsylvania, Patillo
    was headed toward Ford Avenue at approximately thirty miles per
    hour.    Patillo drove through the intersection, disregarding a
    stop sign, and collided with an SUV parked in a driveway across
    Ford Avenue.        Flores believed that he was in danger of being
    struck     by    Patillo’s     vehicle       as    it     traveled    through    the
    intersection       and    noted   that   the       distance    between    the    two
    vehicles    was     approximately      five       feet.     Patillo    exited    the
    damaged Explorer and fled on foot.                 Flores eventually caught up
    to Patillo in the backyard of a nearby residence and took him
    into custody.
    B.
    Patillo’s probation officer filed a revocation petition,
    alleging that Patillo violated the conditions of his supervised
    release by using cocaine and committing the crimes of reckless
    driving, failing to stop at the scene of an accident, and felony
    eluding.        Before the district court, Patillo admitted guilt as
    to the first, second, and third violations, but he challenged
    the charge of felony eluding.            After hearing from witnesses, the
    district court (1) determined that Patillo had committed all of
    the   violations,        (2) revoked   Patillo’s        supervised    release,   and
    4
    (3) sentenced him to twenty-four months’ incarceration followed
    by four years of supervised release.
    II.
    Patillo appeals the district court’s judgment revoking his
    supervised release for committing the offense of felony eluding
    in violation of Virginia Code Section 46.2-817(B).                             He argues
    the    district    court        abused   its       discretion      in    evaluating   the
    credibility of contrasting witness testimony and contends there
    was insufficient evidence to prove an essential element of the
    offense.
    We   review     the          district       court’s    decision        to    revoke
    supervised release for abuse of discretion.                          United States v.
    Padgett, 
    788 F.3d 370
    , 373 (4th Cir. 2015), cert. denied, 
    136 S. Ct. 494
     (2015).            To revoke supervised release, the sentencing
    court   must   find    by       a    preponderance      of    the       evidence   that   a
    defendant has violated a condition of supervised release. 
    18 U.S.C. § 3583
    (e)(3).                We review for clear error the district
    court’s     findings       of    fact    underlying      the       conclusion      that   a
    violation occurred.             Padgett, 788 F.3d at 373.                 There is clear
    error if the court, after reviewing the record, is left with
    “the    definite     and    firm      conviction       that    a    mistake     has   been
    committed.”       Anderson v. City of Bessemer City, 
    470 U.S. 564
    ,
    573 (1985) (quoting United States v. U.S. Gypsum Co., 
    333 U.S. 5
    364, 395 (1948)).              However, “[i]f the district court’s account
    of the evidence is plausible in light of the record viewed in
    its    entirety,    the       court    of    appeals       may    not     reverse     it   even
    though convinced that had it been sitting as the trier of fact,
    it would have weighed the evidence differently.”                                United States
    v. Wooden, 
    693 F.3d 440
    , 451 (4th Cir. 2012) (quoting Anderson,
    
    470 U.S. at 573-74
    ).
    A.
    We first consider Patillo’s contention that the district
    court    erred     in    crediting        the       testimony      of    Detective        Flores
    regarding the distance Patillo drove in reverse on Spotsylvania.
    The crux of Patillo’s argument is that if Flores was stopped on
    Ford    Avenue    for        approximately       five      seconds       as    Patillo     began
    driving down the street in reverse, he would have lost sight of
    Patillo when       he    turned       onto   Spotsylvania          and        moved   behind   a
    house located on the corner of the intersection.
    According        to     Patillo,      the      district      court        should     have
    credited the testimony of his cousin Donyell Patillo, who was
    standing on Ford Avenue in a driveway across the street from
    where Flores’s police cruiser stopped.                           Donyell testified that
    Patillo drove in reverse only a few feet down Spotsylvania, just
    far enough to stop at the stop sign and align his vehicle with a
    driveway         located         directly            across        the          intersection.
    Additionally,       Donyell        stated           that    once        Patillo’s      vehicle
    6
    stopped,    Flores     made    a    U-turn        on     Ford       Avenue,    turned    left
    through     the   intersection,          and        made        a    second     U-turn     on
    Spotsylvania to reposition himself behind Patillo, who by then
    had crossed the intersection and entered the driveway.                                  Thus,
    according to Donyell, Patillo never ran through the stop sign or
    came close to colliding with Flores’s police cruiser.
    The    government        responds        that       credibility         determinations
    made during a supervised release revocation proceeding are not
    reviewable, a contention that finds support in the case law.                               In
    the context of revocation proceedings, our sister courts have
    consistently held that witness credibility is quintessentially a
    judgment for the trier of fact and thus virtually unreviewable
    on appeal.     United States v. Cates, 
    613 F.3d 856
    , 858 (8th Cir.
    2010) (holding witness credibility is virtually unassailable on
    appeal);     United States v. Copeland, 
    20 F.3d 412
    , 413 (11th Cir.
    1994) (per curiam) (finding credibility of a witness is in the
    province of the district court and the appellate court will not
    ordinarily    review     the       factfinder’s            determination);           United
    States v. Whalen, 
    82 F.3d 528
    , 532 (1st Cir. 1996) (stating
    “credibility determinations are within the unique role of the
    factfinder and we are loath to upset . . . the district court’s
    findings”    (citation        omitted));             see    also      United     States    v.
    Lindsey,    242   F.   App’x       65,   66       (4th     Cir.      2007)    (per   curiam)
    (holding that a district court’s “evaluation of the credibility
    7
    of contrasting witness testimony . . . may not be disturbed” on
    appeal).
    Here,    however,    we     need   not    settle    on   the    appropriate
    standard of review because, even reviewing for clear error, we
    would    not   overturn    the     district     court’s    findings.      On     this
    record, there was sufficient evidence for the court to find that
    after stopping on Ford Avenue for approximately five seconds,
    Flores quickly backed down the street without losing sight of
    Patillo’s vehicle as it turned onto Spotsylvania and traveled in
    reverse for forty to fifty yards.                Patillo’s challenge amounts
    to an invitation (which we decline) for this court to reweigh
    the evidence and substitute its own credibility determinations
    for those made by the district court.
    B.
    We next consider whether the district court correctly found
    that     Patillo   committed       the    offense    of     felony     eluding    in
    violation of Virginia Code Section 46.2-817(B).                   Patillo argues
    that    the    district    court    erred      because    his   conduct   did     not
    interfere with or endanger the operation of Flores’s vehicle or
    endanger a person, including himself.              We do not agree.
    Under Virginia law, a person is guilty of felony eluding
    if, “having received a visible or audible signal from any law-
    enforcement officer to bring his motor vehicle to a stop, [he]
    drives such motor vehicle in a willful and wanton disregard of
    8
    such signal so as to interfere with or endanger the operation of
    the law-enforcement vehicle or endanger a person.” Virginia Code
    § 46.2-817(B).        Explaining the “endangerment” element, Virginia
    courts have reasoned that “a manifest purpose of the statute is
    to protect the public against a driver eluding police ‘so as
    to .   .   .   endanger     a    person.’”      Tucker   v.    Commonwealth,    
    564 S.E.2d 144
    , 146 (Va. Ct. App. 2002) (quoting Virginia Code §
    46.2-817(B)).         Thus,       “conduct     that   raises    the   specter    of
    endangerment     is   the       evil   contemplated    and    proscribed   by   the
    statute.”      Gray v. Commonwealth, 
    651 S.E.2d 400
    , 403 (Va. Ct.
    App. 2007) (quoting Tucker, 
    564 S.E.2d at 146
    ).
    The statute does not require an individual to be at the
    scene and narrowly escape injury or death; it requires only that
    the defendant’s conduct create the “specter of endangerment.”
    Coleman v. Commonwealth, 
    660 S.E.2d 687
    , 690 (Va. Ct. App. 2008)
    (quoting Tucker, 
    564 S.E.2d at 146
    ) (finding that traveling at a
    high rate of speed through an unoccupied cul-de-sac and hitting
    a curb constituted endangerment).               The person endangered can be
    the driver himself, the pursuing police officer, or anyone else
    traveling on the road who is placed at risk as a result of the
    defendant’s actions.             Phelps v. Commonwealth, 
    654 S.E.2d 926
    ,
    927 (Va. 2008).
    Here, Patillo interfered with and endangered the operation
    of Detective Flores’s vehicle.               Patillo entered the intersection
    9
    at approximately thirty miles per hour, disregarded a stop sign
    located     on     the     corner,      and     traveled       within       five     feet     of
    Detective Flores’s police cruiser.                         When Flores saw Patillo’s
    vehicle coming toward him, he stopped on Spotsylvania, fearing
    that he would be rammed.                Although Patillo contends that Flores
    was not forced to “swerve, brake, or take any action to avoid a
    collision,”       Appellant’s         Br.     at     17,     and    therefore        was    not
    endangered,        the     district          court     was     unconvinced,          stating,
    “[A]nybody who thinks he’s going to be rammed is going to remain
    where he is to protect himself.”                    J.A. 87-88.
    We    hold     that       the     district       court       did    not      abuse     its
    discretion in concluding that Patillo committed the offense of
    felony     eluding,        in    that     Patillo’s          conduct      endangered        and
    interfered       with     the   operation       of    Flores’s      vehicle.         We     also
    agree with the district court that Patillo’s conduct posed a
    significant risk to the safety of others, including himself.                                 By
    driving    through        an    intersection          at    thirty       miles     per     hour,
    without stopping at the stop sign, Patillo endangered anyone
    traveling    on     the     road      that    night,       including       other     drivers,
    pedestrians, and cyclists.                  The district court aptly described
    the   “specter       of     endangerment”:           “[Patillo]          flew    across      the
    intersection       without      stopping       thereby       endangering         anybody    who
    was coming down the street, any car who was coming down the
    10
    street and himself.”          J.A. 88.      And that Patillo struck a parked
    SUV serves as further proof that he endangered himself.                         
    Id.
    Although Patillo accurately contends that Virginia courts
    have   yet   to   find   that       running       a    stop    sign,     without      more,
    constitutes    felony    eluding,         that    is    not     what    happened      here.
    Instead, Patillo reversed down Ford Avenue at a high rate of
    speed, made a reverse turn onto Spotsylvania, and traveled in
    reverse for forty to fifty yards before driving back through the
    intersection at thirty miles per hour.
    Moreover, Patillo does not cite to a single case showing
    that   his    conduct    is    insufficient            to   support      a    finding    of
    endangerment.      Without such precedent he cannot show that the
    district court abused its discretion.
    III.
    We affirm the district court’s judgment.                        We dispense with
    oral   argument    because         the    facts       and   legal      contentions      are
    adequately    presented       in    the    materials          before    the    court    and
    argument would not aid the decisional process.
    AFFIRMED
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