                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 03-4657



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


ELLIOT J. WINSLOW, a/k/a Little Black, a/k/a
Elliot W. Campbell,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. James H. Michael, Jr.,
Senior District Judge. (CR-94-35)


Submitted:   February 13, 2004             Decided:   July 26, 2004


Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge


Affirmed by unpublished per curiam opinion.


Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Nancy S. Healey, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Elliott J. Winslow appeals from the district court’s

order     revoking    his   supervised        release        and   imposing   an

eighteen-month sentence of imprisonment.              Winslow contends that

there was insufficient evidence to support the revocation, that the

district court abused its discretion in sentencing him above the

recommendation of the Sentencing Guidelines, and that the district

court’s ex parte meeting with the probation officer violated his

constitutional rights.      We affirm.

            We review the district court’s decision to revoke a

defendant’s supervised release for abuse of discretion.                  United

States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).               The district

court need only find a violation of a condition of supervised

release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3)

(West 2000 & Supp. 2003). Here, the district court’s findings that

Winslow violated the terms of his supervised release by submitting

false reports and moving without prior permission are supported

fully by the record.

            While Winslow attempts to downplay the untruths in his

reports to his probation officer by terming them “mistakes,” even

his excuses do not fully explain the multiple errors.                    In any

event, the district court apparently weighed the contradictory

testimony and decided to credit the probation officer’s version.

It   is   not   the   province   of    this   court     to    second-guess    the


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credibility determinations of the factfinder.                United States v.

Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

             Winslow   next   argues   that   his    sentence    exceeded     the

guideline range prescribed for his violations and that the court

failed to provide an explanation for the sentence imposed.                     We

review   a    district    court’s   order     imposing   a    sentence    after

revocation of supervised release for abuse of discretion.                United

States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995).             Pursuant to

§ 3583(e)(3), Winslow faced a maximum sentence of five years for

the violations.

             Chapter Seven of the Sentencing Guidelines sets forth

policy   statements      offering   recommended     sentencing    ranges      for

revocation of supervised release.           Chapter Seven is advisory and

non-binding.      Davis, 53 F.3d at 642.       While the sentencing court

should consider the policy statements before imposing sentence, a

“court need not engage in ritualistic incantation in order to

establish its consideration” of the policy statements.                  Id.    In

this case, the district court gave prior notice that it was

considering a sentence above the guidelines range, explicitly

demonstrating that it was familiar with the range and the relevant

policy statements.         We therefore find that the imposition of

sentence did not constitute an abuse of discretion.

             Finally, Winslow argues that an ex parte meeting between

the   probation    officer    and   the   district    court     prior    to   the


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revocation hearing violated his rights to counsel, to confront

witnesses, and to due process.            The record does not reflect that

such a meeting occurred, but the Government assumes for the sake of

argument that one took place.

              Because Winslow did not object below, we review for plain

error.     Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725,     732-35     (1993).      A   probation     officer   is   “a   neutral,

information-gathering agent of the court, not an agent of the

prosecution.”       United States v. Johnson, 935 F.2d 47, 50 (4th Cir.

1991) (approving pre-sentence, ex parte meetings and describing

these communications as “nonadversarial”). The probation officer’s

activities here were akin to preparing a presentence report and

discussing the report with the court prior to initial sentencing,

a practice we approved in Johnson.              In any event, because Winslow

is   unable    to   show   any   bias    or   prejudice   resulting    from   the

communication, he cannot show plain error.

              Accordingly, we affirm the judgment of the district

court. We dispense with oral argument, because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                       AFFIRMED




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