United States v. Lindsay , 242 F. App'x 65 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4068
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM KEITH LINDSAY, a/k/a Skinny Pimp,
a/k/a William Keith Lindsey,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon, District
Judge. (3:00-cr-00078-nkm-2)
Submitted: May 21, 2007 Decided: July 6, 2007
Before WILKINSON, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Frederick T. Heblich,
Jr., Assistant Federal Public Defender, Christine Madeleine
Spurell, Research and Writing Attorney, Charlottesville, Virginia,
for Appellant. John L. Brownlee, United States Attorney, Bruce A.
Pagel, Assistant United States Attorney, Charlottesville, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Keith Lindsay appeals the district court’s
judgment revoking his supervised release and sentencing him to
twenty-four months of imprisonment to be followed by twelve months
of supervised release. Lindsay argues that, prior to the hearing
on the petition to revoke his supervised release, he did not
receive written notice, or any notice, that he was alleged to have
violated his supervised release by submitting falsified reports to
his probation officer. Lindsay also asserts that the district
court erred in concluding that he falsified the reports. The
Government concedes that the district court erred in failing to
provide written notice, but argues that this court should review
the issue for plain error, and that Lindsay cannot demonstrate that
the error affected his substantial rights or that failure to notice
the error would seriously affect the fairness, integrity, or public
reputation of judicial proceedings. The Government also argues
that the district court’s conclusion that Lindsay submitted
falsified reports was established by a preponderance of the
evidence.
We review a district court’s order imposing a sentence
after revocation of supervised release for abuse of discretion.
United States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). The
district court abuses its discretion when it fails or refuses to
exercise its discretion or when its exercise of discretion is
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flawed by an erroneous legal or factual premise. See James v.
Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). The district court need
only find a violation of a condition of supervised release by a
preponderance of the evidence. See 18 U.S.C. § 3583(e)(3) (2000).
Lindsay did not object to the district court’s consideration of
falsification of his probation reports as a possible basis for
revoking supervised release. We therefore review Lindsay’s
assertion of error in failing to provide written notice of that
charge for plain error. See Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 731-32 (1993); United States v.
Carr, 303 F.3d 539, 543 (4th Cir. 2002). Although the district
court’s failure to ensure that Lindsay was provided prior written
notice of the charge of falsifying probation reports was error that
was plain, our review of the record leads us to conclude that
Lindsay cannot demonstrate that the district court’s error affected
his substantial rights, or that failure to notice the error would
impugn the integrity of judicial proceedings.
We also conclude that the district court’s conclusion
that Lindsay falsified his probation reports is supported by the
evidence. A defendant challenging the sufficiency of the evidence
faces a heavy burden. United States v. Beidler, 110 F.3d 1064,
1067 (4th Cir. 1997). In determining whether the evidence in the
record is substantial, this court views the evidence in the light
most favorable to the government. United States v. Burgos, 94 F.3d
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849, 862 (4th Cir. 1996) (en banc). In evaluating the sufficiency
of the evidence, this court does not review the credibility of the
witnesses. United States v. Romer, 148 F.3d 359, 364 (4th Cir.
1998). The district court’s conclusion that Lindsay submitted
false reports regarding his employment status was based on an
evaluation of the credibility of contrasting witness testimony, and
may not be disturbed by this court.
We therefore 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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