              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 09a0344n.06
                           Filed: May 15, 2009

                                        No. 08-4408

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

              v.                                               On Appeal from the United
                                                               States District Court for the
TYRONE GILBERT,                                                Northern District of Ohio at
                                                               Youngstown
       Defendant-Appellant.


                                                         /

Before:       GUY, ROGERS, and GRIFFIN, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.           Defendant Tyrone Gilbert appeals from the

revocation of his supervised release. The district court revoked defendant’s supervised

release after it found that defendant failed to successfully complete a six-month placement

in a Community Corrections Center. Defendant argues that it was an abuse of discretion to

revoke his supervised release when he disputed the rules violations that were the basis of his

discharge from the halfway house. After review of the record and the arguments presented

on appeal, we affirm.

                                              I.

       Defendant was charged with and pleaded guilty to two counts: possession with intent

to distribute cocaine base, 21 U.S.C. § 841(a)(1) and (b)(1)(C); and being a felon-in-
No. 08-4408                                                                                2

possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1). Initially sentenced to a 76-

month term of imprisonment and three years of supervised release, defendant’s term of

imprisonment was reduced to 57 months after amendment to the crack cocaine guidelines.

See 18 U.S.C. § 3582. Defendant entered supervised release in March 2008, and two months

later was charged with violating its conditions by testing positive for marijuana use and

failing to report for drug testing. Defendant consented to a modification of his supervised

release, including service of three months in a Community Corrections Center (CCC).

Before that placement began, however, defendant was charged with two additional violations

in a second violation report. At a hearing held August 8, 2008, defendant admitted all four

violations, and the government argued for revocation of supervised release. The district

court again modified defendant’s supervised release, this time imposing as a condition that

he successfully complete a six-month period in a halfway house or CCC.

       Defendant began the six-month placement at a CCC on August 25, 2008, and was

discharged from the facility on September 30, 2008. A third violation report charged that

defendant failed to comply with the conditions of supervised released, and, at a hearing held

October 23, 2008, defendant argued that he did not actually violate the rules for which he

was discharged from the CCC. The probation officer testified that defendant was written

up for two program violations: possession of contraband, namely, a Motorola cell phone

charger on September 1, 2008, and a cellular phone on September 10, 2008. He was

discharged when, on September 30, he was seen with a cell phone in his belt and refused to

turn it over. Gilbert’s girlfriend, Marlene Viera, testified that she had given him an MP3
No. 08-4408                                                                                  3

player that could be mistaken for a phone and that it had a Motorola charger. Gilbert testified

that the staff at the CCC mistook his MP3 player for a cell phone and that the charger was

for the MP3 player.

       At the conclusion of the hearing, the district court found that defendant had violated

the conditions of supervised release by his admitted failure to complete the six-month CCC

placement. The district court added that “there may have been some misunderstanding about

what electronic device he had, [but] it was incumbent upon him to bring that to the attention

of the people at the community correction center.” Finally, the district court declined to

second-guess the determination by the CCC staff that defendant violated the program rules.

Revoking defendant’s supervised release, the district court sentenced defendant at the bottom

of the guidelines range to a six-month term of imprisonment, to be followed by an additional

term of supervised release. This appeal followed.

                                              II.

       We review a district court’s decision to revoke supervised release for abuse of

discretion, “giving fresh review to its legal conclusions, and clear-error review to its fact

findings.” United States v. Kontrol, 554 F.3d 1089, 1091-92 (6th Cir. 2009) (citations

omitted); see also United States v. Carter, 463 F.3d 526, 528 (6th Cir. 2006). Defendant

argues that it was an abuse of discretion for the district court to find that he violated the

conditions of supervised release without considering whether he committed the underlying

program violations that led to his discharge from the CCC placement.
No. 08-4408                                                                                 4

       A district court may revoke a term of supervised release if it “finds by a

preponderance of the evidence that the defendant violated a condition of supervised release.”

18 U.S.C. § 3583(e)(3). Here, there was ample evidence, indeed a concession, that defendant

violated the conditions of his supervised release, as modified, by not successfully completing

the six-month CCC placement. See United States v. Kirby, 418 F.3d 621, 626-27 (6th Cir.

2005). Defendant also had the opportunity to present evidence regarding the discharge. The

district court was not required to determine whether the discharge for violating the rules was

justified, but could consider the defendant’s explanations in deciding whether to modify or

revoke the conditions of supervised release. The district court did not abuse its discretion

in this case.

       AFFIRMED.
