United States v. Kevin Kirby , 547 F. App'x 363 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4442
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KEVIN AUSTIN KIRBY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cr-00119-F-1)
Submitted: November 27, 2013 Decided: December 12, 2013
Before GREGORY, AGEE, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Peter Marshall Wood, LAW OFFICE OF PETER WOOD, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Kirby appeals from the judgment revoking his
sentence of probation based on six alleged violations and
imposing a sixty-month term of imprisonment. On appeal, Kirby
argues that the district court unlawfully shifted the burden of
proof to him, requiring him to prove why his probation should
not be revoked. Finding no error, we affirm the judgment.
Kirby contends that the court impermissibly shifted
the burden of proof by not requiring proof from the Government
on all violations except four, and when, after the Government
presented evidence on violation four, the court asked “why
shouldn’t he be found to have violated all [of] four?” The
Government concedes that it bears the burden of proving that
Kirby violated the conditions of his probation sentence, but
contends that the district court’s isolated statement regarding
violation four was merely an opportunity for Kirby to present
further argument and did not reflect a decision to lay the
burden of proof upon Kirby. The Government also contends that
although it did not present evidence on violations other than
numbers two, four, and six, Kirby eventually admitted to all
violations except number four, and the court could find a
violation without further evidence from the Government on all
violations but number four.
2
“The burden of persuasion is on the Government” in a
probation violation hearing. United States v. Nagelberg, 413
F.2d 708, 709 (2d Cir. 1969). To revoke a defendant’s
probation, the district court need only find a violation by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2012).
The district court has broad discretion in its decision to
revoke a defendant’s probation. United States v. Cates, 402
F.2d 473, 474 (4th Cir. 1968). A judge’s discretionary order
revoking probation does not require the level of proof
sufficient to support a criminal conviction. United States v.
Williams, 378 F.2d 665, 666 (4th Cir. 1967). Instead, the facts
and evidence must “reasonably satisfy the judge that the conduct
of the probationer has not been as good as required by the
conditions of probation.” United States v. Ball, 358 F.2d 367,
370 (4th Cir. 1966) (internal quotations and citation omitted).
In this case, we conclude that the revocation did not amount to
an abuse of the court’s broad discretion and the court did not
shift the burden of proof to the Defendant.
First, although Kirby argues that he contested
violations two, four, and six, the transcript indicates that
only violation four was contested. Therefore, the Government
was not required to put on evidence to support the uncontested
violations. Second, the court’s statement asking why Kirby
should not be found guilty of violation four was only after the
3
Government put on evidence regarding the violation. When it
became clear that Kirby was contesting violation four, the court
turned to the Government to determine whether it would like to
introduce evidence of the violation into the record. Further,
the evidence was sufficient to determine that Kirby had
participated in new criminal conduct as specified in the motion
to revoke probation.
Accordingly, we affirm the judgment revoking the
probation sentence and imposing a sixty-month term of
imprisonment. 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
4