United States v. Earnest Rouse , 608 F. App'x 153 ( 2015 )


Menu:
  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 14-4943
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    EARNEST ROUSE,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Aiken. Margaret B. Seymour, Senior District
    Judge. (1:08-cr-00947-MBS-5)
    Submitted:   June 25, 2015                 Decided:   June 29, 2015
    Before GREGORY, FLOYD, and THACKER, Circuit Judges.
    Affirmed and remanded by unpublished per curiam opinion.
    James P. Rogers, Assistant Federal Public Defender, Columbia,
    South Carolina, for Appellant. Kelly Wilson Hall, Assistant United
    States Attorney, Columbia, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Earnest Kenneth Rouse appeals the district court’s judgment
    revoking his supervised release and sentencing him to 24 months’
    imprisonment.      Counsel has filed a brief pursuant to Anders v.
    California,   
    386 U.S. 738
        (1967),    stating       that   there   are    no
    meritorious      grounds     for    appeal   but   questioning        whether      the
    district court clearly erred by finding by a preponderance of the
    evidence that Rouse violated his supervised release by committing
    aggravated assault.        Rouse was informed of his right to file a pro
    se supplemental brief, but he has not done so.                  We affirm.
    To revoke supervised release, a district court need only find
    a violation of a condition of supervised release by a preponderance
    of the evidence.     
    18 U.S.C. § 3583
    (e)(3) (2012); United States v.
    Copley, 
    978 F.2d 829
    , 831 (4th Cir. 1992).                This standard is met
    when the court “believe[s] that the existence of a fact is more
    probable than its nonexistence.”             United States v. Manigan, 
    592 F.3d 621
    , 631 (4th Cir. 2010) (internal quotation marks omitted).
    “[W]e review a district court’s factual findings underlying a
    revocation for clear error.”           United States v. Padgett, ___ F.3d
    ___, ___, 
    2015 WL 3561289
    , at *1 (4th Cir. June 9, 2015).                       There
    is clear error if, after reviewing the record, we are “left with
    the   definite     and     firm    conviction    that     a    mistake   has    been
    committed.”      United States v. Span, ___ F.3d ___, ___, 
    2015 WL
                                           2
    3541800, at *3 (4th Cir. June 8, 2015) (internal quotation marks
    omitted).
    We conclude that the district court did not clearly err by
    finding by a preponderance of the evidence that Rouse committed
    aggravated assault, as the three victims testified that Rouse
    chased after them with a sword, threatening to kill them. Although
    Rouse denied committing the assaults, we defer to the district
    court’s decision to credit the victims’ testimony over Rouse’s.
    See United States v. Cates, 
    613 F.3d 856
    , 858 (8th Cir. 2010)
    (holding that credibility determinations made by district court at
    revocation hearings are rarely reviewable on appeal).
    In accordance with Anders, we have reviewed the entire record
    in this case and have found no meritorious grounds for appeal.             We
    note, however, that the “Nature of Violation” 12 was Rouse’s
    failure to pay restitution, not his commission of new criminal
    conduct, as stated on the revocation order.         Accordingly, although
    we affirm the district court’s judgment, we remand for correction
    of the clerical error.
    This court requires that counsel inform Rouse, in writing, of
    the right to petition the Supreme Court of the United States for
    further review.    If Rouse requests that a petition be filed, but
    counsel believes that such a petition would be frivolous, then
    counsel   may   move   in   this   court   for   leave   to   withdraw   from
    representation.    Counsel’s motion must state that a copy thereof
    3
    was served on Rouse.       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 AND REMANDED
    4
    

Document Info

Docket Number: 14-4943

Citation Numbers: 608 F. App'x 153

Filed Date: 6/29/2015

Precedential Status: Non-Precedential

Modified Date: 1/13/2023