United States v. Knight ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 26, 2006
Charles R. Fulbruge III
Clerk
No. 06-60013
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KEVIN V. KNIGHT, also known as Big Bam,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:99-CR-9-1
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Before DAVIS, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kevin V. Knight appeals the revocation of his supervised
release following his 1999 guilty plea to possession with intent
to distribute “crack” cocaine base. He argues that the district
court abused its discretion in revoking his supervised release
because the evidence was insufficient to prove that he possessed
the cocaine found in a truck he had access to but did not own.
He further contends that he could not personally notify his
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-60013
-2-
probation officer of his arrest because the probation office does
not accept collect phone calls.
A district court may revoke a term of supervised release
upon a finding, by a preponderance of the evidence, that the
defendant violated a condition of supervised release. 18 U.S.C.
§ 3583(e)(3); United States v. Hinson, 429 F.3d 114, 119 (5th
Cir. 2005), cert. denied, 126 S. Ct. 1804 (2006). We review a
district court’s decision to revoke a defendant’s supervised
release for abuse of discretion. United States v. McCormick,
54 F.3d 214, 219 (5th Cir. 1995).
There was sufficient evidence presented by the Government
for the district court to find that Knight possessed the cocaine
found in the truck. The police located Knight in the area and in
close proximity to the truck described in the anonymous tip.
Knight had been seen on several occasions driving the truck and
had personal property in the truck. By finding that Knight had
violated the conditions of his supervised release, the district
court implicitly found that the contrary testimony of Knight was
not credible. This court does not pass on a district court’s
determination as to the credibility of the witnesses. See United
States v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994).
Accordingly, the district court did not abuse its discretion in
finding that Knight had violated the conditions of his supervised
release.
No. 06-60013
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Knight also argues that the district court committed plain
error by failing to afford him his right to allocute before
sentencing, in violation of FED. R. CRIM. P. 32. As the
Government acknowledges, the record does not show that the
district court unequivocally communicated to Knight his right to
speak prior to imposing his sentence. Thus, the district court
committed error that is plain. See United States v. Reyna,
358 F.3d 344, 350 (5th Cir. 2004) (en banc). As the Government
further acknowledges, prejudice is presumed because Knight was
sentenced at the top of the applicable guideline range, as well
as to the maximum possible term of supervised release. Id. at
352. Nevertheless, Knight fails to allege any facts or arguments
that he would have made at sentencing that would have warranted a
lesser sentence. See United States v. Magwood, 445 F.3d 826, 830
(5th Cir. 2006). Accordingly, the judgment of the district court
is AFFIRMED.