                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4442


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

KEVIN AUSTIN KIRBY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (5:11-cr-00119-F-1)


Submitted:   November 27, 2013            Decided:   December 12, 2013


Before GREGORY, AGEE, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Peter Marshall Wood, LAW OFFICE OF PETER WOOD, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Kevin     Kirby    appeals       from       the       judgment      revoking     his

sentence     of   probation     based        on    six        alleged      violations       and

imposing a sixty-month term of imprisonment.                             On appeal, Kirby

argues that the district court unlawfully shifted the burden of

proof to him, requiring him to prove why his probation should

not be revoked.       Finding no error, we affirm the judgment.

            Kirby   contends         that    the    court         impermissibly       shifted

the burden of proof by not requiring proof from the Government

on all violations except four, and when, after the Government

presented    evidence     on    violation          four,          the   court    asked      “why

shouldn’t he be found to have violated all [of] four?”                                       The

Government concedes that it bears the burden of proving that

Kirby violated the conditions of his probation sentence, but

contends that the district court’s isolated statement regarding

violation four was merely an opportunity for Kirby to present

further    argument    and     did    not    reflect          a    decision      to   lay    the

burden of proof upon Kirby.                 The Government also contends that

although it did not present evidence on violations other than

numbers two, four, and six, Kirby eventually admitted to all

violations    except     number       four,       and    the       court     could    find    a

violation without further evidence from the Government on all

violations but number four.



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            “The burden of persuasion is on the Government” in a

probation violation hearing.                United States v. Nagelberg, 413

F.2d    708,    709   (2d    Cir.     1969).         To    revoke    a       defendant’s

probation, the district court need only find a violation by a

preponderance of the evidence.                  18 U.S.C. § 3583(e)(3) (2012).

The    district    court    has     broad   discretion      in    its    decision      to

revoke a defendant’s probation.                   United States v. Cates, 402

F.2d 473, 474 (4th Cir. 1968).                   A judge’s discretionary order

revoking       probation     does     not       require    the    level       of    proof

sufficient to support a criminal conviction.                      United States v.

Williams, 378 F.2d 665, 666 (4th Cir. 1967).                     Instead, the facts

and evidence must “reasonably satisfy the judge that the conduct

of the probationer has not been as good as required by the

conditions of probation.”            United States v. Ball, 358 F.2d 367,

370 (4th Cir. 1966) (internal quotations and citation omitted).

In this case, we conclude that the revocation did not amount to

an abuse of the court’s broad discretion and the court did not

shift the burden of proof to the Defendant.

            First,     although       Kirby       argues     that       he    contested

violations two, four, and six, the transcript indicates that

only violation four was contested.                   Therefore, the Government

was not required to put on evidence to support the uncontested

violations.        Second,    the    court’s       statement     asking       why   Kirby

should not be found guilty of violation four was only after the

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Government put on evidence regarding the violation.                        When it

became clear that Kirby was contesting violation four, the court

turned to the Government to determine whether it would like to

introduce evidence of the violation into the record.                       Further,

the   evidence     was     sufficient       to   determine     that      Kirby   had

participated in new criminal conduct as specified in the motion

to revoke probation.

            Accordingly,         we   affirm     the   judgment     revoking     the

probation       sentence     and      imposing     a    sixty-month       term    of

imprisonment.      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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