           Case: 18-14446   Date Filed: 05/22/2019   Page: 1 of 10


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-14446
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 2:05-cr-14026-DLG-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

TONY JAY SAUNDERS,

                                                          Defendant-Appellant.

                       ________________________

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

                              (May 22, 2019)

Before TJOFLAT, JORDAN and FAY, Circuit Judges.

PER CURIAM:
              Case: 18-14446     Date Filed: 05/22/2019   Page: 2 of 10


      Tony Jay Saunders appeals following the district court’s revocation of his

supervised release. We affirm.

                                 I. BACKGROUND

      In 2005, following a jury trial, Saunders was convicted of possession with

intent to distribute five or more grams of crack cocaine (Count 1), possession with

intent to distribute cocaine hydrochloride (Count 2), and possession with intent to

distribute marijuana (Count 3), all of which were in violation of 21 U.S.C. §

841(a)(1). The district court sentenced him to 130 months of imprisonment for

Counts 1 and 2, and 120 months of imprisonment for Count 3, all to be served

concurrently, followed by a total of 8 years of supervised release. Saunders

appealed his convictions, and we affirmed. United States v. Saunders, 196 F.

App’x 873 (11th Cir. 2006).

      In 2008, the district court reduced Saunders’s total sentence, pursuant 18

U.S.C. § 3582, to 120 months of imprisonment. The court did not modify any of

the other provisions of his sentence, including his supervised release conditions.

      Saunders discharged his custodial sentences, as amended, in 2014, at which

point he began serving his supervised release terms. Less than a year later,

however, probation officials sought to revoke his release due to violations he had

committed in 2015. The district court revoked Saunders’s supervised release and

sentenced him to time served; it imposed all of his original release conditions.


                                          2
              Case: 18-14446     Date Filed: 05/22/2019    Page: 3 of 10


      In 2018, probation officials filed the present petition to revoke Saunders’s

release. They alleged that Saunders had violated the conditions of his supervised

release by committing four new crimes in February 2018: (1) battery by

strangulation, in violation of Florida Statute § 784.041(2)(a); (2) resisting an

officer without violence, in violation of Florida Statute § 843.02; (3) burglary of a

conveyance or structure with an assault or battery, in violation of Florida Statute §

810.02(2)(a); and (4) tampering with a witness, victim or informant, in violation of

Florida Statute § 914.22.

      A magistrate judge heard testimony at the detention hearing and the final

revocation hearing. The government called three witnesses: Danielle Peltier, the

victim of Saunders’s abuse, who testified at both proceedings; Port Saint Lucie

Police Officer Salvador Garcia, who also testified at both proceedings; and Port

Saint Lucie Police Officer Supreet Fraga, who testified at the final revocation

hearing. Saunders called two defense witnesses: Sharmane Saunders, his daughter;

and Colleen Heinssen, Sharmane’s mother.

      The magistrate judge issued a report and recommendation (“R&R”),

recommending that the district court find that Saunders had violated the terms of

his supervised release. First, the judge concluded that Saunders had committed

battery by strangulation. The judge reasoned that Peltier’s testimony established

that Saunders had committed the crime, as her testimony was a “detailed,


                                           3
              Case: 18-14446     Date Filed: 05/22/2019   Page: 4 of 10


chronological and coherent account of what happened.” The judge stated that

Peltier’s “demeanor on the stand was emotional yet direct. She identified specific

reasons for the altercation, specified where the events occurred . . ., and had no

difficulty recollecting the events, answering questions or providing relevant

details.” Additionally, the judge reasoned that the officers’ testimonies

corroborated Peltier’s testimony. The judge also stated that the Computer Aided

Dispatch (“CAD”) report corroborated her timeline of events, despite Saunders’s

arguments that the CAD report casted doubt on Peltier’s testimony.

      The judge also found Heinssen’s testimony unpersuasive, noting that she

was not present at the incident and that “she has her own motive to keep

[Saunders] out of prison since she lives with him and their children as a family and

benefits from his financial support.” The judge concluded that Sharmane also was

not credible. The judge ultimately concluded that Peltier was a “credible witness”

and her testimony was consistent in all material respects.

      Next, the judge concluded that Saunders had resisted an officer without

violence. The judge reasoned that the officers had reasonable suspicion, “if not

probable cause,” to stop Saunders when he decided to flee, because they knew that

someone had called 911 and complained of being choked by Saunders, they had

found and identified Saunders near his truck, and Officer Garcia had observed red




                                          4
              Case: 18-14446     Date Filed: 05/22/2019   Page: 5 of 10


marks on Peltier’s neck. Furthermore, Saunders knew that they were police

officers when he fled, and he continued to flee in defiance of their orders to stop.

      The judge also concluded that Saunders had committed burglary of a

structure or conveyance. The judge reasoned that Peltier tried preventing Saunders

from entering her home, but he forced his way inside with his key; then when he

was asked to leave, he smashed Peltier’s phone and attacked her. Although

Saunders had a key, his permission to enter was revoked when Peltier attempted to

prevent him from coming inside and told him to leave.

      Finally, the judge concluded that Saunders had committed tampering with a

victim. Saunders had smashed Peltier’s phone after she informed him to leave or

she would call the police; he was trying to prevent her from calling the police,

which the judge found was sufficient to satisfy the elements of tampering with a

victim.

      After independently reviewing the record, the district court overruled

Saunders’s objections and adopted the R&R, finding that Saunders had violated the

terms of his supervised release. The district court revoked his supervised release

and ordered him to serve an additional 18 months of imprisonment, followed by

three years of supervised release.

      On appeal, Saunders contends that the magistrate judge’s findings of fact

and credibility determinations, which were adopted by the district court, were


                                          5
               Case: 18-14446        Date Filed: 05/22/2019      Page: 6 of 10


clearly erroneous, because Peltier’s testimony was unbelievable. 1 Additionally,

Saunders argues that the district court erred in concluding that he had committed

the Florida crime of resisting an officer without violence.

                                     II. DISCUSSION

A. Credibility Determination

       We “review a district court’s revocation of supervised release for an abuse

of discretion.” United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir.

2010). A district court may revoke a term of supervised relief if, by a

preponderance of the evidence, it finds that the defendant violated a condition of

his supervised release. 18 U.S.C. § 3583(e)(3). We must accept a district court’s

findings of fact unless clearly erroneous. United States v. Almand, 992 F.2d 316,

318 (11th Cir. 1993). “[T]he Supreme Court has recognized [that] a trial court’s

choice between ‘two permissible views of the evidence’ is the very essence of the

clear error standard of review.” United States v. Rodriguez De Varon, 175 F.3d

930, 945 (11th Cir. 1999) (en banc) (quoting Anderson v. City of Bessemer City,

470 U.S. 564, 574, 105 S. Ct. 1504, 1511 (1985)). Therefore, “[s]o long as the

basis of the trial court’s decision is supported by the record and does not involve a




       1
          Saunders does not specifically mention in his brief that he is challenging the
determination that he committed battery by strangulation, burglary of a structure or conveyance,
and tampering with a victim; however, his arguments in regard to Peltier’s credibility go to all
three of these violations.
                                                6
              Case: 18-14446      Date Filed: 05/22/2019    Page: 7 of 10


misapplication of a rule of law,” it is rare for us to conclude that the trial court’s

determination is clearly erroneous. Id.

      Furthermore, “[c]redibility determinations are typically the province of the

fact finder because the fact finder personally observes the testimony and is thus in

a better position than a reviewing court to assess the credibility of witnesses.”

United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). In fact, we

have said that a “trial judge’s . . . choice of whom to believe is conclusive on the

appellate court unless the judge credits exceedingly improbable testimony.” Id.

(alteration in original) (quoting United States v. Cardona-Rivera, 904 F.2d 1149,

1152 (7th Cir. 1990)). “In other words, [w]e must accept the evidence unless it is

contrary to the laws of nature, or is so inconsistent or improbable on its face that no

reasonable factfinder could accept it.” Id. (alteration in original) (quoting United

States v. Eddy, 8 F.3d 577, 580 (7th Cir. 1993)). Thus, “in evaluating the factual

version of events . . . we should defer to the magistrate judge’s determinations

unless [the judge’s] understanding of the facts appears to be ‘unbelievable.’” Id.

      Saunders argues that the magistrate judge’s findings of fact and credibility

determinations regarding Peltier’s testimony, subsequently adopted by the district

court, were erroneous. His contention lacks merit because he has not shown that

the district court credited “exceedingly improbable testimony.” See id. His

primary argument to show that Peltier’s testimony was not believable centers


                                            7
              Case: 18-14446     Date Filed: 05/22/2019    Page: 8 of 10


around her timeline of events compared to the CAD report and other slight

inconsistencies. However, this does not make Peltier’s testimony improbable as a

matter of law. Certainly, being strangled and smothered could be a reasonable

explanation as to why Peltier could not give minute-by-minute testimony of the

incident, and this was for the magistrate judge to sort out, which she did.

Furthermore, the magistrate judge concluded that the CAD report actually

supported Peltier’s timeline of events, which a review of the CAD report supports.

Accordingly, the magistrate judge’s decision to credit Peltier was a reasonable

choice between two permissible views of the evidence, which we cannot disturb.

B. Resisting an Officer Without Violence

      Under Florida law, it is unlawful for an individual to “resist, obstruct, or

oppose any officer . . . in the lawful execution of any legal duty, without offering

or doing violence to the person of the officer.” Fla. Stat. § 843.02. The Florida

Supreme Court has stated that, in order to support a conviction, the State must

prove: “(1) the officer was engaged in the lawful execution of a legal duty; and (2)

the defendant’s action, by his words, conduct, or a combination thereof, constituted

obstruction or resistance of that lawful duty.” C.E.L. v. State, 24 So. 3d 1181,

1185-86 (Fla. 2009).

      In regard to flight, the Florida Supreme Court explained the following:

      [W]e note that as a general rule, flight, standing alone, is insufficient to
      form the basis of a resisting without violence charge. Therefore, the act
                                           8
              Case: 18-14446     Date Filed: 05/22/2019    Page: 9 of 10


      of flight alone is not a criminal offense. To be guilty of unlawfully
      resisting an officer, an individual who flees must know of the officer’s
      intent to detain him, and the officer must be justified in making the stop
      at the point when the command to stop is issued. A stop is justified
      when an officer observes facts giving rise to a reasonable and well-
      founded suspicion that criminal activity has occurred or is about to
      occur. In turn, whether an officer’s well-founded suspicion is
      reasonable is determined by the totality of the circumstances that
      existed at the time of the investigatory stop and is based solely on facts
      known to the officer before the stop. If the facts support a conclusion
      that the officers had reasonable suspicion to detain an individual at the
      point when the individual is ordered to stop, the next inquiry is whether
      a fact-finder could find that the individual’s acts constituted obstruction
      or resistance without violence of the officers’ execution of their legal
      duty.

Id. at 1186 (emphasis added) (citations omitted).

      Here, the officers had reasonable suspicion to stop Saunders, and his flight,

despite being told to stop by police, constituted resisting an officer without

violence. The officers had reasonable suspicion to stop Saunders based on (1)

Peltier’s 911 call accusing Saunders of choking her, (2) Officer Garcia’s

observation of red marks around Peltier’s neck, (3) officers identifying Saunders

near a truck that matched the description that Peltier gave to dispatch, and (4)

Saunders’s unprovoked flight from uniformed officers, and his continued flight

after they directed him to stop. Contrary to Saunders’s contentions, probable cause

was not needed, but only reasonable suspicion, and thus it does not matter if

probable cause was lacking or if officers were still conducting their investigation.




                                          9
             Case: 18-14446    Date Filed: 05/22/2019   Page: 10 of 10


Accordingly, the district court did not err in concluding that Saunders had

committed the offense of resisting an officer without violence.

      AFFIRMED.




                                         10
