United States v. John Atkins , 696 F. App'x 152 ( 2017 )

Case: 16-10876 Document: 00514125208 Page: 1 Date Filed: 08/21/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10876 FILED
c/w No. 16-10877 August 21, 2017
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOHN LOUIS ATKINS,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 1:15-CR-52-1
USDC No. 1:15-CR-53-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Defendant-Appellant John Louis Atkins appeals the simultaneous
revocations of two terms of supervised release. The revocations were based on
his having possessed a firearm, even though he was acquitted on a charge of
being a felon in possession of a firearm.
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-10876 Document: 00514125208 Page: 2 Date Filed: 08/21/2017
No. 16-10876
c/w No. 16-10877
We review a revocation of supervised release for abuse of discretion.
United States v. Spraglin, 418 F.3d 479, 480 (5th Cir. 2005). Revocation was
proper if the district court found “by a preponderance of the evidence that the
defendant violated a condition of his release.” Id.; see 18 U.S.C. § 3583(e)(3).
The evidence and reasonable inferences from it are reviewed in the light
favorable to the government. United States v. Alaniz-Alaniz, 38 F.3d 788, 792
(5th Cir. 1994). The acquittal at the criminal trial does not preclude a
revocation based on the conduct underlying the criminal charges. See United
States v. Teran, 98 F.3d 831, 835-36 (5th Cir. 1996) (revoking probation).
Atkins contends that, under Federal Rule of Evidence 201, the district
court could take notice only of the “adjudicative fact” of his acquittal rather
than the underlying evidence of firearm possession. His arguments about the
nuances of judicial notice under Rule 201 are immaterial because the Federal
Rules of Evidence do not apply in revocation proceedings. See United States v.
Williams, 847 F.3d 251, 253 (5th Cir. 2017), petition for cert. filed (June 16,
2017) (No. 17-5015); FED. R. EVID. 1101(d)(3).
Despite our previous order instructing Atkins to address “the substance
or sufficiency of [the] evidence to prove the underlying conduct” of firearm
possession, he has not done so. Regardless, the evidence was sufficient.
Defense counsel conceded that the trial evidence showed that a functioning
firearm was found in the back of Atkins’s truck. Other unrebutted evidence
showed that, during an investigation that led to Atkins being charged with
murder, a revolver believed to be the murder weapon was found in his truck.
That evidence, viewed in the light favorable to the government, supports a
finding by a preponderance of the evidence that Atkins possessed a firearm.
See Spraglin, 418 F.3d at 480; Alaniz-Alaniz, 38 F.3d at 792. The district court
did not abuse its discretion, and the judgment is AFFIRMED.
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