United States v. Michael Morales

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0147n.06
No. 14-5587
FILED
UNITED STATES COURT OF APPEALS Feb 25, 2015
FOR THE SIXTH CIRCUIT DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
MICHAEL MORALES, ) TENNESSEE
)
Defendant-Appellant. )
*
BEFORE: MERRITT and WHITE, Circuit Judges; HOOD, District Judge.
PER CURIAM. Michael Morales, a federal prisoner, appeals through counsel the
revocation of his term of supervised release.
In 2004, Morales entered a guilty plea to charges of possessing cocaine base with the
intent to distribute and possessing a firearm in furtherance of drug trafficking. He was sentenced
to 130 months of imprisonment (R.E. 23). The sentence was later reduced to 125 and then to
120 months. After serving his term and beginning his period of supervised release, Morales was
arrested on charges of assault and robbery. A preliminary hearing and grand jury proceeding
both resulted in findings of probable cause in the state court, but the case was dismissed when
the victim could not be located. A petition was filed to revoke the period of supervised release.
A preliminary hearing was held before a magistrate judge, who also found probable cause to
*
The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 14-5587
United States v. Morales
believe Morales had violated his supervised release by committing new crimes and ordered his
detention (R.E. 58). A hearing was then held on the revocation of supervised release.
The victim bar owner appeared for this hearing and testified that he saw Morales outside
his bar when he arrived for work on the night of the robbery. Morales was one of the first
customers to arrive and was driving a distinctive green car (R.E. 65, pg. 6). While outside,
Morales got in an argument with another man, apparently about something that happened in jail.
This prompted the victim to charge a cover for entry into the bar. The victim collected the ten-
dollar cover charge from Morales (R.E. 65, pgs. 7-8). Several hours later, after the victim turned
up the house lights to signal that it was time for the patrons to leave, Morales and another man,
who was holding a gun, robbed the victim (R.E. 65, pgs. 11-12). Morales struck the victim
repeatedly in the face, kicked him, and dumped two garbage cans full of beer bottles on him
before taking approximately $600 from the victim’s pocket (R.E. 65, pgs. 16-18). When the
police arrived, the victim described the distinctive green car the robber was driving, and the
police recognized the car as belonging to Morales (R.E. 65, pg. 33). They arrested him and
brought him back to the bar in the back seat of the police cruiser. The victim identified him as
the robber (R.E. 65, pg. 34), and later repeated his identification at the various hearings. A
photograph of Morales sitting on the hood of a green car was introduced as evidence (R.E. 65,
pg. 41). After hearing the evidence, the district court concluded that Morales had violated his
supervised release by committing new crimes and sentenced him to 56 months of imprisonment
(R.E. 61). On appeal, Morales argues that he was the victim of a suggestive identification and
that eyewitness identifications have been shown to be unreliable in a number of studies.
Supervised release may be revoked upon a showing by a preponderance of the evidence
that the defendant has violated the terms of his release. United States v. Polihonki, 543 F.3d 318,
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No. 14-5587
United States v. Morales
326 (6th Cir. 2008) (citing 18 U.S.C. § 3583(e)(3)). We review a decision revoking supervised
release for an abuse of discretion. United States v. Curtis, 237 F.3d 598, 605 (6th Cir. 2001).
The district court’s factual findings are reviewed for clear error. United States v. Kontrol, 554
F.3d 1089, 1091–92 (6th Cir. 2009). On this record, it does not appear that the district court
abused its discretion in revoking Morales’s supervised release. A preponderance of the evidence
supported that the victim was able to identify Morales from having seen him in his bar over the
course of the evening, including during the beating and robbery, and that the identification was
not solely based on the suggestive show-up. The victim’s identification of Morales was
unequivocal, and the district court did not clearly err in crediting his testimony. Accordingly, the
district court’s judgment is affirmed.
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