UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellant,

v.                                      No. 96-4264

VIVIAN PERRY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Matthew J. Perry, Jr., Senior District Judge.
(CR-95-996)

Submitted: March 31, 1997
Decided: April 25, 1997

Before WIDENER and ERVIN, Circuit Judges,
and PHILLIPS, Senior Circuit Judge.

_________________________________________________________________
Reversed by unpublished per curiam opinion.

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COUNSEL

J. Rene Josey, United States Attorney, Eric Wm. Ruschky, Assistant
United States Attorney, Columbia, South Carolina, for Appellant.
Langdon D. Long, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The United States appeals from the district court's order reversing
Vivian Perry's conviction for driving under the influence (S.C.
Code
Ann. § 56-5-2930 (Law. Co-op. 1991), assimilated by 18 U.S.C.A.
§ 13 (West Supp. 1997)) at Fort Jackson, South Carolina--n exclu-
sive federal jurisdiction. Because we find that the district court
incor-
rectly determined that the evidence was insufficient to support the
magistrate judge's judgment of conviction, we reverse the district
court's order and reinstate Perry's conviction for driving under
the
influence.

The district court's review of a conviction entered by a magistrate
judge is not a trial de novo; rather the district court's review is
the
same as the review by a court of appeals of a decision by a
district
court. Fed. R. Crim. P. 58(g)(2)(D); see United States v. Peck, 545
F.2d 962, 964 (5th Cir. 1977). This court's review is governed by
the
same standard as is the district court's review. See United States
v.
Hughes, 542 F.2d 246 (5th Cir. 1976).

In reviewing sufficiency of the evidence, the court is required to
construe all the evidence and reasonable inferences therefrom in
the
light most favorable to the government. See United States v.
Giunta,
925 F.2d 758, 764 (4th Cir. 1991) (citing Jackson v. Virginia, 443
U.S. 307, 319 (1979)); see also United States v. Colclough, 549
F.2d
937, 942 (4th Cir. 1977) (circumstantial evidence may support con-
viction). The reviewing court is not to reweigh the evidence or
recon-
sider the credibility of witnesses. See Glasser v. United States,
315
U.S. 60, 80 (1942).

The evidence before the magistrate judge, construed in the light
most favorable to the government, was as follows: After Perry was
stopped by a Military Police officer for speeding, she retrieved
her
2
driver's license from her purse in the trunk. She had difficulty
getting
the key into the trunk's keyhole, leaned on the car for support,
and
smelled of alcohol. When asked, she admitted to having a beer
earlier.
Further, Perry failed all three of the field sobriety tests
conducted.*
She became confused and belligerent and, after being escorted to
the
Military Police station, she refused to submit to the breath test.

Perry testified that she had two mixed drinks that evening and that
someone spilled a drink on her. The friend who was with Perry that
evening called her son to pick her up, rather than accepting a ride
home from Perry. We conclude that this evidence was sufficient for
a rational trier of fact to find beyond a reasonable doubt that
Perry
was guilty of driving under the influence.

Reversing the conviction, the district court improperly reevaluated
the evidence, observing that a drink spilled on Perry would explain
the smell of alcohol, the field sobriety tests are subjective, and
the sit-
uation and late hour could explain Perry's nervousness, confusion,
and fumbling with the keyhole. The district court also concluded
that
the magistrate judge placed too much weight on Perry's refusal to
take the breath test.

However, under South Carolina law, the fact that a defendant
refused to take the breath test is admissible. State v. Jansen, 408
S.E.2d 235, 236-37 (S.C. 1991); State v. Smith , 94 S.E.2d 886, 889
(S.C. 1956). The weight of this evidence was for the magistrate
judge,
as the factfinder, to determine.
Because the district court reversed Perry's conviction after
improp-
erly determining credibility of witnesses and reweighing the
evidence,
we reverse the district court's order and reinstate Perry's
conviction
and $200 fine entered by the magistrate judge. We dispense with
oral
argument because the facts and legal contentions are adequately
pres-
_________________________________________________________________
*She touched either her lip or the bridge of her nose when
instructed
to touch the tip of her nose; she could not balance on one foot for
the
count of ten and only counted backwards from ten when asked to
count
forward and backward; and, when asked to walk heel to toe for seven
steps, turn and walk back heel to toe, she did not touch heel to
toe and
continued eleven steps until instructed to turn.

                                 3
ented in the materials before the court and argument would not aid
the
decisional process.

REVERSED
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