           Case: 12-15999   Date Filed: 05/23/2013   Page: 1 of 14




                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-15999
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 2:05-cr-14057-KMM-1



UNITED STATES OF AMERICA,

                                                      Plaintiff - Appellee,

versus

DAVID LEE BROWN,

                                                      Defendant - Appellant.

                       ________________________

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

                              (May 23, 2013)

Before TJOFLAT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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      David Lee Brown appeals the revocation of his supervised release and the

resulting imposition of his 24-month sentence, pursuant to 18 U.S.C. § 3583(e).

On appeal, Brown first argues that there was insufficient evidence to show that he

violated a condition of his supervised release by committing burglary with assault

under Florida Statute § 810.02(2)(a). Second, Brown contends the district court’s

sufficiency of the evidence error resulted in an incorrect calculation of his

sentence, rendering it procedurally unreasonable. Finding no error on the part of

the district court, we affirm.

                                         I.

      In January 2006, Brown was convicted of (1) possession of counterfeit

obligations, and (2) attempt to utter counterfeit obligations, both in violation of 18

U.S.C. § 472. The district court sentenced Brown to 60 months’ imprisonment and

three years’ supervised release as to each count, to run concurrently. Brown’s

supervised release was conditioned upon, inter alia, his abstention from further

criminal activity.

      Brown’s term of supervision commenced on December 10, 2009. In June

2012, however, his probation officer filed a “Petition for Warrant or Summons for

Offender under Supervision,” claiming that Brown violated the mandatory

conditions of his supervised release by committing several crimes: (1) assault, in

violation of Florida Statute § 784.011; (2) battery, in violation of Florida Statute §


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784.03; and (3) burglary of a dwelling or structure with assault, in violation of

Florida Statute § 810.02(2)(a). 1

       At the final hearing, the government proffered two witnesses to testify

regarding Brown’s alleged burglary with assault violation: Deputy Sheriff Matthew

Hurst and Tanya Collins, the alleged victim. Hurst testified that at approximately

3:00 a.m. on May 27, 2012, he responded to a 911 call made from an apartment in

Okeechobee County, Florida, by a woman who stated that she woke up to find four

men in her apartment and that an assault occurred. After arriving at the scene,

Hurst encountered an upset and crying Collins in the parking lot of the apartment

complex; Collins was in sleeping attire, smelled of alcohol, and appeared to be

intoxicated. Despite her intoxication, Collins was coherent and had no problems

answering the background questions that Hurst posed.

       Collins told Hurst that she had been out drinking on the evening of May 26,

returned to her apartment, and went to bed. In the wee hours of the morning, she

awoke to find four men in her bedroom; her undergarments had been pulled off

and two of the men were trying to take off the rest of her clothing. She identified

two of the men as Livan Ramos, whom she had formerly dated, and Daniel

Salazar, an old schoolmate. Collins did not know Brown at the time of the

       1
         Brown only appeals the revocation of his supervised release with regard to the third
violation of burglary with assault. Therefore, we need not consider the first two violations. See
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam) (holding that issues not
briefed on appeal are deemed abandoned).
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incident, but later identified him as one of the men in her bedroom. She also did

not know the name of the fourth man, but he was later identified as Jessie Lyng.

Collins did not say that Brown had touched her, but complained repeatedly that

Brown had urinated on her clean clothes stored in a hamper at the foot of her bed.

Collins told Hurst that she had to physically fight the four men in order to get them

out of her apartment.

      Hurst returned later that day to conduct a second, follow-up interview with

Collins. Hurst testified that Collins was completely coherent and sober during the

interview, and that her story was consistent with her initial complaint. At that

time, Collins signed a sworn statement. While on the premises, Hurst also noticed

that the screen had been removed from a small unlocked window beside the front

door of Collins’s apartment, which seemed to support Collins’s explanation that

she did not know how the men had gained entry; otherwise, there were no signs of

forced entry. The crime scene investigators collected Collins’s undergarments and

the clothing in the hamper, but Hurst did not know whether the clothing was tested

for urine.

      Hurst issued a radio dispatch for the suspects and a black Cadillac, and

received word on the evening of May 27 that a man named Daniel Salazar was the

subject of a traffic stop. Hurst went to the site of the traffic stop, where he




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encountered Ramos, Salazar, and Brown, all of whom voluntarily agreed to come

to the Sheriff’s Office to be interviewed.

       During his interview, Brown explained that at about 2:30 a.m. on May 27,

Ramos took the men to Collins’s apartment to drink beer and “party.” According

to Brown, the three men were in the apartment when Collins went into the

bedroom and then returned, yelling and screaming for them to leave. Apparently,

Collins was so loud that Salazar urged them to leave before someone called the

police. Brown insisted that he did not touch Collins or urinate on her clothing.

Although he admitted that he had entered the apartment, he denied going into

Collins’s bedroom. The accounts given by Brown, Ramos, and Salazar were

inconsistent in many ways, but were consistent in that none of them stated that

Brown had entered Collins’s bedroom.

       Collins testified that she had reported an incident to the police and later gave

written statements to both the police and an attorney. 2 She explained that she had



       2
         Sometime after making her complaint, Collins indicated to Elissa Salazar, Daniel
Salazar’s wife, that she wanted to drop the charges because she was “tired of the scrutiny.”
Elissa Salazar took Collins to the office of Daniel Salazar’s attorney, at which time Collins wrote
a statement that she was not certain whether she had let the men into her apartment. There was
also an allegation against Brown that he engaged in witness tampering and was going to pay
Collins off, but Collins explained that Brown never asked her to give any particular testimony to
the police or to prosecutors. Finally, the government filed a motion to dismiss the violation of
supervised release petition because there was “insufficient evidence to support the allegations
and the United States [could not] move forward in good faith.” However, the district court
denied the motion, ruling that the evidence was sufficient to proceed under the preponderance of
the evidence standard required in violation of supervised release cases, regardless of whether the
evidence was sufficient for a reasonable doubt-based criminal prosecution.
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been drinking in the late afternoon and into the evening of May 26, but could not

recall whether she had been drinking with friends or whether she had been drinking

alone at home before going to bed. 3 Collins recalled that Salazar and Ramos were

in her bedroom trying to wake her up; a third man was near the bedroom door, and

a fourth man—whom she later identified as Brown—was closer to the bed. She

recalled that Ramos grabbed her legs and Salazar held her right wrist, and that they

told her to get up. One of the men, whom she believed to be Ramos, yanked off

her undergarments, tearing them. After refreshing her memory with the written

statement she gave to the police, she testified that Brown did not touch her.

Collins testified that she never had any intention of engaging in sexual activity

with any of the men.

       Collins testified that she got up, attempted to find clothes to cover herself,

and yelled at the men to leave; she then observed Brown urinating on her clothing.

She stated that she had to physically fight the men to get them to leave, and

believed that she slapped Brown and Ramos, but that Brown did not hit her. At

that time, Lyng told the other men that they should leave because a neighbor was

calling the police. Collins recalled that the men departed in a big car, dark blue or



       3
         In response to questions posed by the court, Collins stated that she began drinking at her
apartment later in the afternoon on May 26, after a friend drove her home from her father’s
house. She did not recall leaving her apartment after that and, to the best of her recollection, she
drank alone at home until she went to bed. She also did not recall inviting anyone into her
apartment.
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black, possibly a Cadillac. Subsequently, she ran to a neighbor’s apartment to call

the police.

       Collins conceded that she was very intoxicated 4 that night, and thus could

not recall whether the men entered the apartment on their own or whether she let

them in. She also admitted that she did not know if the front door had been locked

and conceded that it was possible that she had removed the screen from the

window by her front door. On cross-examination, Collins also stated that she was

unsure if the men came through the window. However, she insisted that her in-

court testimony was accurate, regardless of what she had said in prior statements.

       The district court found, by a preponderance of the evidence, that Brown had

committed the first two violations of assault and battery, but noted that the

burglary with assault violation presented a “closer question.” Nevertheless, the

court found that Collins had been a very “truthful and candid and credible witness”

in openly acknowledging her questionable recollection of certain events, and

ultimately concluded, by a preponderance of the evidence, that Brown had

unlawfully entered the apartment and was guilty of burglary with assault.

       Based on a criminal history category of V, as calculated in the Presentencing

Investigation Report (PSI), and the categorization of burglary with assault as a

Grade A violation, the district court stated that Brown’s advisory guideline range

       4
         Collins also explained that she had been diagnosed with bipolar disorder when she was
a teenager and that she took medications for that condition, as well as for anxiety.
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was 30 to 37 months’ imprisonment. The court also noted that the mandatory

statutory range for Brown’s violation of supervised release was 0 to 24 months.

The court confirmed that violations one and two were Grade C violations, with a

guideline range of 7 to 13 months’ imprisonment, but that the highest grade, Grade

A, applied to the calculation of his guideline range. The court ultimately

sentenced Brown to 24 months’ imprisonment. Brown objected to the court’s

determination that he was guilty of the three violations. This appeal followed.

                                         II.

      On appeal, Brown argues that the government failed to prove by a

preponderance of the evidence that he committed burglary with assault.

Specifically, he maintains that there was no sign of forced entry into Collins’s

apartment and that Collins admitted that she might have let Brown and his

companions into her apartment. Further, even if there was sufficient evidence to

prove burglary, there was no evidence that Brown entered the apartment with the

intent to commit assault or battery or that, once inside, he battered or assaulted

Collins.

      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) (per curiam). A district court’s findings of fact during a revocation of

supervised release proceeding are binding unless clearly erroneous. United States


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v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). We accept a district court’s

credibility determination 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.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (internal

quotation marks omitted). In reviewing a sufficiency of the evidence challenge in

a criminal action, we also accept reasonable inferences made by the factfinder.

United States v. Hope, 901 F.2d 1013, 1021 (11th Cir. 1990) (per curiam).

      A district court may revoke a defendant’s term of supervised release if the

court “finds by a preponderance of the evidence that the defendant violated a

condition of [his] supervised release.” 18 U.S.C. § 3583(e)(3); see United States v.

Trainor, 376 F.3d 1325, 1331 (11th Cir. 2004) (explaining that the preponderance

of the evidence standard requires only that the trier of fact believe that “the

existence of a fact is more probable than its nonexistence” (internal quotation

marks omitted)). “[A]n explicit condition of supervised release[] [is] that the

defendant not commit another Federal, State, or local crime during the term of

supervision.” 18 U.S.C. § 3583(d); see U.S.S.G. § 7B1.1 cmt. n.1 (“[A] mandatory

condition of . . . supervised release is that the defendant not commit another

federal, state, or local crime.”). Determining whether a defendant violated a

condition of his supervised release depends on his actual conduct, not whether he

was charged with, or convicted of, a crime. U.S.S.G. § 7B1.1 cmt. n.1.


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      Here, we hold that the evidence before the district court was sufficient to

find, by a preponderance of the evidence, that Brown’s conduct comprised the

offense of burglary with assault; therefore the district court did not abuse its

discretion in concluding that Brown violated the conditions of his supervised

release. Once again, Brown’s supervision was conditioned, in part, upon his

abstention from committing any federal, state, or local crimes. See 18 U.S.C. §

3583(d); U.S.S.G. § 7B1.1 cmt. n.1. Pursuant to Florida Statute § 810.02(2)(a),

burglary is a first-degree felony punishable by a term of years, not exceeding life

imprisonment, if the offender assaults or batters any person in the course of

committing the burglary. Fla. Stat. § 810.02(2)(a). Florida law defines “burglary”

as “[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an

offense therein, unless the premises are at the time open to the public or the

defendant is licensed or invited to enter.” Fla. Stat. § 810.02(1)(b)(1). “Assault”

consists of “an intentional, unlawful threat by word or act to do violence to the

person of another, coupled with an apparent ability to do so, and doing some act

which creates a well-founded fear in such other person that such violence is

imminent.” Fla. Stat. § 784.011(1).

      As a preliminary matter, we give substantial weight to the district court’s

unique ability to evaluate Collins’s credibility as a witness. See Ramirez-Chilel,

289 F.3d at 749. Although the district court acknowledged that Collins was not an


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ideal witness, based on her intermittent recollection and occasionally inconsistent

statements, Collins never wavered on two important facts: that Brown had been in

her bedroom while two of his companions attacked her and that, while there,

Brown urinated on her laundry after she told the men to leave. Accordingly, the

district court’s decision to credit Collins’s testimony was not “so inconsistent or

improbable on its face that no reasonable factfinder could accept” that

determination. See id.

      As to the elements of burglary, the court did not abuse its discretion in

concluding that Brown committed the crime. Despite Collins’s intermittent

recollection, it was not clearly erroneous for the court to find that Collins was

incapacitated and likely in no condition to admit the men into her home. Further,

Brown’s intent to commit a felony upon entering the residence can be reasonably

inferred from his presence in the bedroom and his proximity to the bed during

Collins’s attack. See Hope, 901 F.2d at 1021. The court’s findings that Collins did

not let the men into her apartment, combined with the uncontroverted fact that the

men were present in Collins’s apartment on the night in question, were sufficient to

prove burglary by a preponderance of the evidence. See Fla. Stat. § 810.02(1)(b).

      In addressing whether there was an assault, the district court also credited

Collins’s testimony, and did not clearly err in finding that Brown was in the

bedroom while Collins was being attacked. Brown’s statement that he was in


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Collins’s apartment to “party,” his proximity to the bed during Collins’s attack,

and his decision to urinate on her clothes after she told the men to leave evidenced

Brown’s threat, apparent ability, and intent to do Collins harm. Moreover, the fact

that Collins did not know Brown and that she reacted so strongly to the unexpected

presence of the men in her bedroom and, specifically, to Brown urinating on her

laundry, demonstrated that Collins had a well-founded fear for her safety. Thus,

the evidence presented by the government was sufficient to prove assault by a

preponderance of the evidence. See Fla. Stat. § 784.011(1).

      Accordingly, the district court did not abuse its discretion in concluding by a

preponderance of the evidence that Brown committed burglary with assault, in

violation of his supervised release conditions. We therefore affirm.

                                         III.

      Brown subsequently argues that his sentence was procedurally unreasonable

because the district court incorrectly calculated his sentence. Specifically, Brown

contends that the court erred by calculating his guideline range using the Grade A

supervised release violation of burglary with assault, even though the government

failed to sufficiently prove the violation; thus, his sentence was procedurally

unreasonable.

      Procedural reasonableness includes accurately calculating the applicable

guideline range. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597


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(2007). A district court’s interpretation of the Sentencing Guidelines is normally

reviewed de novo, and its factual findings are reviewed for clear error. United

States v. Valnor, 451 F.3d 744, 750 (11th Cir. 2006).

      The guideline range for a sentence imposed upon the revocation of

supervised release is determined by the grade classification of the most serious

violation for which the supervised release was revoked, combined with the

criminal history category that was “applicable at the time the defendant originally

was sentenced to a term of supervision.” U.S.S.G. §§ 7B1.1(a)(1), (b), 7B1.4(a).

Of the three grades of supervised release violations provided under § 7B1.1(a),

Grade A violations are the most serious and involve conduct that constitutes “a

federal, state, or local offense punishable by a term of imprisonment exceeding one

year that . . . is a crime of violence,” or any other federal, state, or local crime

punishable by a prison term exceeding 20 years. Id. § 7B1.1(a)(1).

      Brown does not allege that his offense is neither a crime of violence nor

punishable by a prison term exceeding 20 years. See id. Instead, Brown’s

procedural argument depends entirely on the success of his sufficiency of the

evidence claim. As we explained above, the district court did not abuse its

discretion by finding sufficient evidence to support Brown’s burglary with assault

violation. Thus, the court did not err by calculating his guideline range using the




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Grade A classification. Accordingly, we affirm both the revocation of Brown’s

supervised release and the sentence imposed for that violation.

      AFFIRMED.




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