                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1558
                         ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                              Timothy Lawan Postley

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Northern District of Iowa - Cedar Rapids
                                  ____________

                          Submitted: September 23, 2016
                             Filed: October 11, 2016
                                 [Unpublished]
                                 ____________

Before LOKEN, GRUENDER, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

      Timothy Lawan Postley appeals from the district court’s1 decision revoking his
supervised release and imposing a sentence of 30 months’ imprisonment for a Grade

      1
       The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
A violation of burglary in the second degree and other Grade C violations. He argues
that the district court clearly erred in finding he committed second-degree burglary.
As a result of this clear error, it allegedly abused its discretion by imposing a 30-
month sentence. For the reasons discussed below, we affirm.

       On December 4, 2015, police officers responded to a report of a disturbance at
Kima Mali’s apartment in Cedar Rapids, Iowa and arrested Postley for second-degree
burglary.2 Mali, Postley’s ex-girlfriend, told officers that Postley came to her
apartment, knocked on her door, and rang her doorbell for about an hour before
breaking the deadbolt and forcing his way into her apartment. Once inside, he found
Mali in her bedroom, slapped her, and began to choke her. After Mali threatened to
call the police, Postley fled. Mali also disclosed that she and Postley had broken up
and that he did not reside with her.

       During the police interview with Mali, Postley returned to the apartment, and
officers arrested him, placed him in the back of the squad car, and read him his
Miranda rights. He admitted that he and Mali had dated but had broken up about nine
months earlier. He told officers that he previously lived with Mali while they were
together but had given back the apartment key when he moved out. Postley claimed
that he was at the apartment that night because Mali called and asked him to come.
After changing his story about his whereabouts that evening, Postley refused to
answer any further questions. At the time, Postley was on supervised release.

       At his revocation hearing, Postley admitted to Grade C violations. He conceded
that he failed to participate in substance abuse testing, did not comply with the
instructions of his probation officer, and refused to pay the costs of his remote
alcohol-testing program. He also admitted that he assaulted and choked Mali, but he

      2
       On January 25, 2016, the Linn County District Attorney dismissed the second-
degree burglary charge against Postley after Mali told the prosecutor that she would
not honor a subpoena or cooperate with authorities.

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denied committing burglary in the second degree, a Grade A violation. Postley argued
that because he was living with Mali at the time of the incident, he did not commit
second-degree burglary.

      To buttress these claims, Postley called his mother and his sister to testify at the
revocation hearing. They both testified that Mali was Postley’s girlfriend and that
Postley often would stay at Mali’s apartment and even had a key. However, when
Postley’s mother went to retrieve his belongings after his arrest, she admitted that the
key to Mali’s apartment was not on Postley’s key ring.

       The Government called Postley’s probation officer, who testified that Postley
reported residing with his mother and never reported residing with Mali. Furthermore,
the probation officer testified that Postley admitted that Mali was an ex-girlfriend and
that he was dating a different woman. Finally, the probation officer testified that he
reviewed the recorded phone calls Postley made from jail to Mali. During those calls,
Mali said she was being evicted and that “[Postley] should have just gone home.”
Postley also repeatedly asked Mali to drop the burglary charges against him during
these calls.

         After reviewing the evidence, the district court concluded by a preponderance
of the evidence that Postley committed burglary in the second degree and revoked his
supervised release. It did not find the testimony of Postley’s mother and sister
credible, noted Postley’s own admissions to law enforcement officers, and reasoned
that if Postley really had permission and a key, he would not have needed to kick
down Mali’s apartment door. With the burglary finding and the admitted Grade C
violations, Postley’s sentencing guideline range was 27 to 33 months, and the district
court sentenced him to 30 months’ imprisonment. On appeal, Postley argues that the
district court clearly erred in finding he committed second-degree robbery and, as a
result, abused its discretion in sentencing him to 30 months’ imprisonment.



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       We review a district court’s “underlying factual findings as to whether a
violation occurred for clear error” and its revocation decision for an abuse of
discretion. United States v. Rhone, 647 F.3d 777, 779 (8th Cir. 2011) (quotations
omitted). However, if the district court’s finding of fact is based on a credibility
determination, we note that the standard is even higher, as “[w]itness credibility is
quintessentially a judgment call and virtually unassailable on appeal.” United States
v. Cates, 613 F.3d 856, 858 (8th Cir. 2010) (quoting United States v. Bolden, 596 F.3d
976, 982 (8th Cir. 2010)). And as is the case with initial sentencing proceedings, we
review a district court’s sentence on revocation of supervised release for substantive
reasonableness, United States v. Growden, 663 F.3d 982, 984 (8th Cir. 2011), and
accord a sentence “within the advisory guideline range . . . a presumption of
reasonableness,” United States v. Scales, 735 F.3d 1048, 1052 (8th Cir. 2013)
(quotations omitted). In this case, “[i]t is the defendant’s burden to rebut the
presumption and to show that the sentence should have been lower.” United States
v. Goodale, 738 F.3d 917, 926 (8th Cir. 2013) (quotations omitted).

      Postley’s principal argument is that the district court clearly erred in finding that
he committed second-degree burglary under Iowa law. Iowa Code section 713.5
defines burglary in the second degree as “perpetrating a burglary . . . in which . . . a
bodily injury results to any person,” and Iowa Code section 713.1 defines burglary:

      Any person, having the intent to commit a felony, assault or theft therein,
      who, having no right, license or privilege to do so, enters an occupied
      structure, such occupied structure not being open to the public, or who
      remains therein after it is closed to the public or after the person’s right,
      license or privilege to be there has expired, or any person having such
      intent who breaks an occupied structure, commits burglary.

       Postley claims that because he had a “right, license or privilege” to enter into
Mali’s apartment, he did not commit burglary in the second degree. Postley relies on
State v. Hagedorn, 679 N.W.2d 666 (Iowa 2004), for this argument. There, the Iowa

                                           -4-
Supreme Court found that the defendant had no possessory or occupancy interest in
the residence of his estranged wife because he no longer resided at the residence, his
personal belongings had been set outside, he had been told multiple times that he was
not welcome, and he knew the locks had been changed. Id. at 671. Postley claims
that the application of Hagedorn requires reversing the district court’s finding of fact.
However, we see no clear error in the district court’s finding that Postley committed
burglary in the second degree.

       As in Hagedorn, the evidence in this case demonstrates that Postley did not
have a “right, license or privilege” to enter Mali’s apartment the night of the assault.
Postley’s probation officer had no record that he ever lived with Mali. Postley himself
admitted to officers that he did not live at Mali’s apartment, that they had broken up
approximately nine months before the assault, and that he had moved out of the
apartment. Mali confirmed these facts, telling the officers that Postley did not live
with her and that she refused to let him into her apartment the night of the assault.
During recorded jail calls, Mali told Postley that “she” was being evicted, not that
“they” were being evicted. She told him that he should have gone home—that is, not
to her apartment. In sum, Postley may have once had a right, license, or privilege to
enter Mali’s apartment, but it had expired long before he kicked in her door and
assaulted her.

      That the district court chose to credit this evidence over the testimony of
Postley’s mother and sister was not clearly erroneous. Postley’s statements to police
were corroborated time and time again. The district court noted, “If he really had
permission to be there and really had a key, it would not be necessary for him to kick
the door down.” These credibility determinations and factual findings are not clearly
erroneous, as they “are not internally inconsistent or based on testimony that is
incoherent, implausible, or contradicted by objective evidence in the case.” See
United States v. Jones, 254 F.3d 692, 695 (8th Cir. 2001). The district court correctly



                                          -5-
found that Postley committed second-degree burglary by entering Mali’s apartment
without “right, license or privilege” and assaulting her.

       Finally, Postley’s sole sentencing argument is that the district court abused its
discretion by considering the second-degree burglary finding. Because the district
court correctly found Postley committed second-degree burglary, and therefore a
Grade A violation, it did not abuse its discretion by sentencing him, within the
advisory guidelines range, to 30 months’ imprisonment.

      The judgment of the district court is affirmed.
                     ______________________________




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