United States v. Abraham Gomez , 550 F. App'x 348 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-3932
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Abraham M. Gomez
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 18, 2013
Filed: January 13, 2014
[UNPUBLISHED]
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Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
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PER CURIAM.
The district court1 revoked Abraham M. Gomez’s term of supervised release
after finding that he had committed another crime. The district court then sentenced
1
The Honorable Richard G. Kopf, United States District Judge for the District
of Nebraska.
him to 42 months’ imprisonment, with no supervised release to follow. Gomez
appeals from the judgment of revocation. We affirm.
In December 2006, Gomez pleaded guilty to one count of conspiracy to
distribute and possess with intent to distribute a mixture or substance containing a
detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1), and 846, and one count of possession of a firearm during a drug
transaction, in violation of 18 U.S.C. § 924(c)(1). On the government’s motion,
Gomez’s sentence was reduced to time served on February 12, 2009. He then began
to serve his four-year term of supervised release.
In April 2012, Gomez’s probation officer petitioned the district court for
revocation of his supervised release. The petition alleged that Gomez had violated a
condition of supervised release by “commit[ting] another federal, state, or local
crime.” Specifically, the petition alleged that Gomez had sexually assaulted his
girlfriend’s fifteen-year-old daughter during the summer of 2011. The district court
held a hearing on the petition, during which it received testimony from the minor
(M.L.), her mother, her stepmother, her grandmother, and Mary Paine, Ph.D.
M.L. lived with her mother and Gomez during the summer of 2011 in Trumbull,
Nebraska. One night in late June or early July, M.L. was lying on the couch in the
living room watching television. She was wearing a nightgown and underwear. She
fell asleep around midnight and was later awoken by Gomez knocking on the door.
M.L. testified that Gomez was stumbling and seemed drunk. She let him into the
home and returned to the couch. M.L. testified that Gomez followed her to the couch
and rubbed her vagina over her underwear. According to M.L., she told him to stop
and pushed him away when he refused to do so. Gomez then went to the bedroom he
shared with M.L.’s mother. M.L. testified that she told her mother two weeks later
and that her mother apologized, saying Gomez only did it because he was intoxicated.
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M.L. returned to Montana in August 2011 to live at her father and stepmother’s
home. Her father was deployed to Afghanistan, and M.L. did not get along with her
stepmother. It soon became clear that M.L. could not live with her stepmother, and
M.L.’s stepmother suggested that M.L. might return to Nebraska. Eventually, M.L.
went to live with her paternal grandmother, who sensed something was not right with
M.L. M.L.’s grandmother asked her whether anyone had touched her inappropriately.
M.L. responded in the affirmative and told her grandmother about the incident with
Gomez. Gomez was charged with third-degree sexual assault in Clay County,
Nebraska. The charges were later dismissed.
M.L.’s mother testified that M.L. never told her about the incident. According
to M.L.’s mother, she and Gomez spent every night together during the summer of
2011, there was never a night when Gomez came home after midnight, and she had
not seen him intoxicated. After receiving a phone call from M.L.’s stepmother
regarding the incident, M.L.’s mother told Gomez of the accusation but did not ask
him if he had committed the act.
M.L.’s family testified that she was a withdrawn youth who sometimes cut
herself. M.L. had been fired from a job for threatening to stab a coworker, and M.L.’s
stepmother worried that M.L. might become violent. M.L. did not like staying with
her mother in Nebraska because her mother was on welfare and lived in a trailer. Dr.
Paine testified that delayed disclosure of sexual abuse is common among victims, and
that given M.L.’s circumstances, her delayed disclosures to her mother and then her
grandmother were not surprising.
The district court credited M.L.’s testimony and found that Gomez had sexually
assaulted M.L. The district court found M.L.’s mother’s testimony not credible. On
appeal, Gomez argues that the district court failed to apply the preponderance-of-the-
evidence standard and relied instead on mere suspicion to find that Gomez had
violated the conditions of his supervised release.
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“We review a district court’s decision to revoke supervised release for abuse
of discretion and its factfinding as to whether a violation occurred for clear error.”
United States v. Perkins, 526 F.3d 1107, 1109 (8th Cir. 2008). “When reviewing for
clear error, ‘we reverse only if we have a definite and firm conviction that the district
court was mistaken.’” United States v. Rhone, 647 F.3d 777, 779 (8th Cir. 2011)
(quoting United States v. Farmer, 567 F.3d 343, 346 (8th Cir. 2009)). The
government must prove by a preponderance of the evidence that the defendant
violated a condition of supervised release. 18 U.S.C. § 3583(e)(3).
Gomez argues that “[t]he district court abused its discretion in finding the
victim’s mother’s testimony incredible over the testimony of a troubled teen who
obviously wanted to avoid being sent back to Nebraska to live on welfare in a trailer
with her mother.” Appellant’s Br. 14. As evidence that M.L. was not credible,
Gomez argues that M.L. had made inconsistent allegations, delayed reporting the
incident, and could not remember when the assault occurred or how long she had
known Gomez. Gomez, however, has not shown that the district court’s credibility
findings were clearly erroneous. The district court heard the witnesses’ testimony and
asked detailed follow up questions of M.L. and her mother. It also considered
Gomez’s argument that M.L. concocted the story to avoid returning to Nebraska. The
district court was in a position to assess the credibility of M.L. and her mother, and
we find no reason to disturb its findings on appeal. United States v. Bunch, 707 F.3d
1004, 1006 (8th Cir. 2013) (“It is not our role to re-weigh evidence and substitute our
own credibility assessments for those of the district court.”).2
The judgment is affirmed.
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2
Gomez argues that his due process rights were violated because “the district
court used the fact of arrest as evidence.” Appellant’s Br. 14. Although the district
court was aware of the charge and its dismissal, there is no indication that the district
court considered the fact of Gomez’s arrest as evidence that he had committed the
crime.
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