United States v. Jacob Hill , 506 F. App'x 221 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4524
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JACOB IVAN HILL,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00118-FDW-CH-1)
Submitted: January 17, 2013 Decided: January 24, 2013
Before MOTZ, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre, III, Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jacob Ivan Hill appeals the district court’s judgment
revoking his supervised release and sentencing him to twenty-
four months’ imprisonment. Hill’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), asserting
that there are no meritorious grounds for appeal, but
questioning whether the district court erred in finding that
Hill committed a Grade A violation. Hill raises essentially the
same contention in his pro se supplemental brief. For the
reasons that follow, we affirm.
We review a district court’s judgment revoking
supervised release and imposing a term of imprisonment for abuse
of discretion. United States v. Pregent, 190 F.3d 279, 282 (4th
Cir. 1999). 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) (2006);
United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
Because the standard of proof for a supervised release violation
is less than that required for a criminal conviction, the
district court may find that the defendant has violated a
condition of his supervised release based on its own finding of
new criminal conduct, even if the defendant is acquitted on
criminal charges arising from the same conduct, or if the
charges against him are dropped. United States v. Stephenson,
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928 F.2d 728, 732 (6th Cir. 1991); see also United States v.
Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002) (violation of
terms of supervised release is determined based on defendant’s
conduct and may be found whether defendant was ever convicted of
any particular offense).
Hill argues that, at most, he was guilty of a Grade C
violation. This contention is not persuasive in light of the
Government’s evidence of Hill’s conduct, which included the
testimony of the investigating detective and video-recordings of
Hill’s assault on another man. The video-recordings depict Hill
and his associate, Naskahari Williams, violently assaulting the
victim; particularly, Hill punched the victim in the head and
restrained the victim while Williams pistol whipped him.
Although the district court considered Hill’s claim that the
assault was precipitated by the victim’s threat to kill Hill and
Williams, it did not credit that testimony. Such a credibility
determination is not susceptible to appellate scrutiny. Accord
United States v. Cates, 613 F.3d 856, 858 (8th Cir. 2010)
(“Witness credibility is quintessentially a judgment call and
virtually unassailable on appeal” (internal quotation marks
omitted)).
A Grade A supervised release violation results from
“conduct constituting a federal, state, or local offense
punishable by a term of imprisonment exceeding one year
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that . . . is a crime of violence.” U.S. Sentencing Guidelines
Manual (“USSG”) § 7B1.1(a)(1)(i), p.s. (2006). A “crime of
violence” for purposes of § 7B1.1(a)(1)(i), p.s. includes any
state or federal crime that “has as an element the use,
attempted use, or threatened use of physical force against the
person of another” or “is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another,” that is punishable by more than a year in
prison. USSG §§ 4B1.2(a), 7B1.1, p.s., cmt. n.2.
We agree with the district court’s conclusion that the
video-recordings reflect, at minimum, that Hill aided and
abetted Williams’ assault with a deadly weapon with the intent
to kill and causing serious injury. Such an assault is
classified as a Class C felony under North Carolina law. See
N.C. Gen. Stat. § 14-32(a) (2011). Pursuant to North Carolina’s
Structured Sentencing Act, the lowest possible sentence a
defendant convicted of this offense could receive is forty-four
months’ imprisonment. See N.C. Gen. Stat. § 15A-1340.17(c)
(2011). We therefore readily affirm the district court’s
finding that Hill committed a Grade A violation. Finally, we
note that the State of North Carolina’s decision to dismiss its
charges against Hill does not affect this analysis. See
Stephenson, 928 F.2d at 732; USSG § 7B1.1, p.s., cmt. n.1.
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Although Hill does not assign any error to or
otherwise challenge the twenty-four-month sentence he received,
because this case is before us pursuant to Anders, we have
reviewed the sentence and conclude that it is procedurally and
substantively reasonable. The sentence is within the prescribed
sentencing range and is not plainly unreasonable. Accordingly,
we affirm Hill’s sentence. United States v. Crudup, 461 F.3d
433, 438–40 (4th Cir. 2006).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Hill, in writing, of his
right to petition the Supreme Court of the United States for
further review. If Hill requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court at that time for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Hill. 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
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