United States v. Lavant Washington , 487 F. App'x 793 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4242
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LAVANT V. WASHINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:09-cr-00235-FDW-1)
Submitted: September 20, 2012 Decided: November 5, 2012
Before NIEMEYER, MOTZ, and THACKER, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Matthew Collin Joseph, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Richard Lee Edwards,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lavant V. Washington appeals the district court’s
revocation of his supervised release. * On appeal, Washington
argues that the Government did not prove by a preponderance of
the evidence that he violated the conditions of his release, and
that the district court erred in revoking his supervised
release. Although we affirm the revocation of supervised
release, we remand for the purpose of correcting a clerical
error in the judgment. See Fed. R. Crim. P. 36.
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).
We review the district court’s factual findings for clear error.
United States v. White, 620 F.3d 401, 410 (4th Cir. 2010);
United States v. Cox, 964 F.2d 1431, 1433 (4th Cir. 1992). A
*
The judgment erroneously states that Washington was found
guilty of all three violations. However, the record reveals
that at the revocation hearing, the district court found in
Washington’s favor with respect to the third violation. Because
the judgment does not accurately recite the disposition of this
case, we remand to the district court for correction of the
written judgment. See Fed. R. Crim. P. 36.
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factual finding is clearly erroneous if this court “on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. Harvey,
532 F.3d 326, 336-37 (4th Cir. 2008) (internal quotation marks
omitted). If the district court’s account of the evidence is
“plausible in light of the record viewed in its entirety,” this
court will not reverse the district court’s finding even if it
“would have decided the fact differently.” United States v.
Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal quotation
marks omitted).
We conclude that the district court did not clearly
err in finding that Washington violated the terms and conditions
of his supervised release when he failed to attend a scheduled
mental health session and when he failed to return telephone
calls from his probation officer as instructed. We further
conclude that the district court did not abuse its discretion in
revoking Washington’s supervised release based upon these
violations.
Accordingly, we affirm the district court’s judgment.
We remand to the district court with instructions for the court
to correct the judgment to conform to its oral findings. Fed.
R. Crim. P. 36. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED AND REMANDED
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