                                                              [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________           FILED
                                               U.S. COURT OF APPEALS
                            No. 11-11041         ELEVENTH CIRCUIT
                                                  DECEMBER 1, 2011
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                  D.C. Docket No. 8:01-cr-00144-SDM-1



UNITED STATES OF AMERICA,

                               llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,

                                  versus

PAUL LEVEN NIX,

                            llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                          (December 1, 2011)

Before BARKETT, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:
      Paul Nix appeals the court’s judgment revoking his supervised release under

18 U.S.C. § 3583(e)(3) and imposing a sentence of 21 months’ imprisonment. At

his final revocation hearing, Nix admitted to three “Grade C” violations including

failing to check his voicemail daily, as instructed by his probation officer, and

twice testing positive for marijuana. However, Nix argues that the court

impermissibly relied on “guesses and hunches” to find that he had committed a

“Grade A” violation, aggravated battery with a deadly weapon, against his former

girlfriend, Dominique Waller. Nix seeks to have the case remanded for

resentencing on the three “Grade C” violations only.

      “Under 18 U.S.C. § 3583(e), a district court may, upon finding by a

preponderance of the evidence that a defendant has violated a condition of

supervised release, revoke the term of supervised release and impose a term of

imprisonment after considering certain factors set forth in 18 U.S.C. § 3553(a).”

United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006). In reviewing a

revocation proceeding, the district court’s decision that a defendant violated the

terms of supervised release is reviewed for abuse of discretion. See United States

v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994). Furthermore, we are bound by the

district court’s findings of fact unless they are clearly erroneous. United States v.

Almand, 992 F.2d 316, 318 (11th Cir. 1993).

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       At the revocation hearing, the victim, Dominique Waller, testified that at

around 2:00 a.m. on the night of November 10, 2010, she was asleep in her

apartment when she heard a bang at the front door. She opened the door and

defendant Nix pushed his way into the apartment. He began arguing with her,

pointed a gun at her, and told her that he should have killed her a long time ago.

When Waller fled to the bedroom, Nix followed, threw her on the bed and hit her

across the side of her head with his gun.

      Waller’s houseguest, Laura Foster, corroborated Waller’s testimony. Foster

testified that she woke up to the sound of Nix knocking on the door. When Nix

entered Waller’s apartment, Foster testified that he had something in his hand that

looked like a gun. He forced Waller back into the bedroom and Foster heard

Waller say, “He hit me.”

      Finally, Officer Venus Michaud testified that, on the night of November 10,

2010, she responded to a 911 call from Waller, and when she arrived at the scene

she observed that Waller had an injury on her head, as well as abrasions or red

spots that were consistent with having been in a struggle. Additionally, Waller was

crying when Michaud arrived at the apartment. Although Michaud testified on

cross-examination that she received the 911 call from Waller at approximately

12:50 a.m., the only testimonial discrepancy that the defense points to in this case

                                            3
is the one hour time difference regarding when the incident occurred. All of the

material facts about the aggravated battery are corroborated by the testimony of

Foster and Michaud.

       The district court credited Waller’s and Foster’s testimony and found that it

showed by a preponderance of the evidence that Nix assaulted Waller with a gun

on November 10, 2010. The district court did not credit Nix’s testimony, or the

testimony of his alibi witness, Nix’s current girlfriend, Samantha Williams, that

Nix was with her in her apartment that evening.

       A central point of contention at the hearing was whether Nix had used a gun

to commit the offense because aggravated battery with a deadly weapon is a

“Grade A” violation, and carries a higher guideline sentence than battery, a “Grade

C” violation. See U.S.S.G. § 7B1.1.1 Nix argues that “the district court, utilizing

a hunch, guessed whether Mr. Nix had used a deadly weapon– i.e., a firearm– to

batter Ms. Waller and further guessed as to how her alleged injuries ultimately

occurred,” and that the court relied on “impermissible speculation” in its findings.

United States v. Sepulveda, 115 F.3d 882 (11th Cir. 1997). The basis for this

       1
         Where there is more than one violation of the conditions of supervision, or the violation
includes conduct that constitutes more than one offense, the grade of the violation is determined
by the violation having the most serious grade. U.S.S.G. § 7B1.1 (b).




                                                4
argument is that, in making its findings, the district court stated, “[f]rankly, my

hunch is, if I were guessing, that if Mr. Nix threw [Ms. Waller] down, that he

grabbed her by the arms, with or without the gun in his right hand and slung her

down and when he did, probably a hand came off the shoulder and hit her a

glancing blow on the forehead.” However, as the government points out, this

statement by the court was speculation about the nature and the exact sequence of

events surrounding the altercation, and not the ultimate determination, based on

evidence presented, of whether Nix had committed the aggravated battery.2

Indeed, the court stated several times that the preponderance of the evidence

showed that Nix had committed aggravated battery with a gun. In making this

determination, the district court relied on the testimony of Ms. Waller. “The

credibility of a witness is in the province of the factfinder and this court will not

ordinarily review the factfinder’s determination of credibility.” Copeland, 20 F.3d

at 413.




       2
          It should be noted that the district court could have found that Nix committed the
“Grade A” violation of aggravated battery either by finding that he used a gun to commit the
offense, or by finding that Nix knew Waller was pregnant at the time that he committed the
battery, because battery on a pregnant woman is an aggravated battery. The district court chose
to make the aggravated battery finding on the basis of the gun, even though there was also
enough evidence on the record to find that Nix knew Waller was pregnant at the time the
altercation occurred.

                                                5
      Furthermore, we find no error in the decision to credit the testimony of

Waller and Foster over Nix and Williams. In making a credibility determination, a

court’s “choice of whom to believe is conclusive on the appellate court unless the

judge credits exceedingly improbable testimony.” United States v. Ramirez-Chilel,

289 F.3d 744, 749 (11th Cir. 2002) (citation omitted) (emphasis in original).

      Upon review of the record and consideration of the parties’ briefs, we find

that the district court’s findings of fact were not clearly erroneous, and the district

court did not abuse its discretion in finding that Nix committed aggravated battery

with a deadly weapon by a preponderance of the evidence.

      AFFIRMED.




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