United States v. Harvey Hood, Jr. ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4228
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HARVEY HOOD, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:08-cr-00163-1)
Submitted: September 15, 2015 Decided: October 2, 2015
Before MOTZ, AGEE, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Christian M. Capece, Federal Public Defender, Jonathan D. Byrne,
Research & Writing Specialist, Lex A. Coleman, Assistant Federal
Public Defender, Charleston, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, Eric P. Bacaj,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2009, Harvey Hood, Jr., was convicted of possessing a
stolen firearm, in violation of 18 U.S.C. §§ 922(j), 924(a)(2)
(2012), and was sentenced to 27 months’ imprisonment, to be
followed by a 3-year term of supervised release. The district
court found that, after Hood’s release from imprisonment, he
violated the terms of his supervised release by committing the
state crime of robbery and using controlled substances. The
district court revoked Hood’s supervised release and sentenced
him to 24 months’ imprisonment. On appeal, Hood argues that the
district court abused its discretion in finding that he
committed the robbery offense by making clearly erroneous
factual findings. * We affirm.
To revoke supervised release, a district court need only
find a violation of a condition of release by a preponderance of
the evidence. 18 U.S.C. § 3583(e)(3) (2012). “We review a
district court’s ultimate decision to revoke a defendant’s
supervised release for abuse of discretion.” United States v.
Padgett, 788 F.3d 370, 373 (4th Cir. 2015). A district court’s
factual findings are reviewed for clear error. Id.
* Hood admitted to the controlled substances violation and
does not contest this violation on appeal.
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“A factual finding is clearly erroneous when we are ‘left
with the definite and firm conviction that a mistake has been
committed.’” United States v. Stevenson, 396 F.3d 538, 542 (4th
Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573
(1985)). “Witness credibility is quintessentially a judgment
call and virtually unassailable on appeal.” United States v.
Cates, 613 F.3d 856, 858 (8th Cir. 2010) (quoting United States
v. Bolden, 596 F.3d 976, 982 (8th. Cir. 2010)) (internal
quotation marks omitted). We may, however, find clear error
where “[d]ocuments or objective evidence . . . contradict the
witness’ story; or the story itself [is] so internally
inconsistent or implausible on its face that a reasonable
factfinder would not credit it.” Anderson v. City of Bessemer
City, 470 U.S. 564, 575 (1985).
We have reviewed the record and conclude that the district
court did not clearly err in relying on the testimony of the
victim to establish that Hood committed the state offense of
robbery, and in so doing, finding that Hood violated a term of
his supervised release. While the victim gave inconsistent
statements to the police, they were not so inconsistent as to
render the district court’s reliance on her testimony
unreasonable. The pictures of the victim’s injuries are
consistent with her account of the attack. Additionally, while
the victim did not inform the police she was planning on selling
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Hood heroin before the robbery, she did admit to using heroin,
thus subjecting her to possible punitive sanctions based on her
report to the police. Thus, we conclude the district court did
not abuse its discretion in revoking Hood’s supervised release.
Accordingly, we affirm the district court’s order revoking
supervised release. 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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