                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4473


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANDRE LAMONT COOK,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:09-cr-00218-LO-1)


Submitted:   January 28, 2016             Decided:   February 4, 2016


Before DUNCAN, AGEE, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Geremy C. Kamens, Acting Federal Public Defender, Cadence Mertz,
Assistant Federal Public Defender, Alexandria, Virginia, for
Appellant.   Dana J. Boente, United States Attorney, Anna G.
Kaminska, Special Assistant United States Attorney, Alexandria,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Andre Lamont Cook pled guilty in 2009 to travel with intent

to engage in illicit sexual conduct, in violation of 18 U.S.C.

§ 2423(b) (2012).             He was sentenced to 46 months’ imprisonment,

followed     by    ten    years     of   supervised      release.         The    terms    of

Cook’s     supervised          release        included     a     number     of    Special

Conditions, including the following:

     7. The defendant shall not possess or use a computer
     to access any online computer services at any
     location, including employment, without the prior
     approval of the probation officer.     This includes any
     internet service providers, bulletin board systems, or
     any   other   public   or   private   computer  network.
     However, if the Court determines that the defendant
     should be allowed access to a computer and/or the
     Internet, it is recommended that the defendant comply
     with the requirements of the Computer Monitoring
     Program as administered by the Probation Office.     The
     defendant   shall   consent   to  the   installation  of
     computer monitoring software on any computer to which
     the defendant has access.

     Shortly after Cook began his term of supervised release, he

signed   a   Computer          &   Internet        Monitoring    Program    Participant

Agreement, in which he agreed to “not possess or permit another

individual to bring or possess an unauthorized computer in my

home.”

     In July 2015, the United States Probation Office sought

revocation        of   Cook’s      supervised        release,    alleging       that   Cook

possessed     devices         capable    of    accessing       the   internet    (desktop

computers     and        an    iPhone),       without    prior       approval     of     the


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Probation Officer.        At the revocation hearing, Cook presented

the testimony of two witnesses who stated that Cook did not use

the computers and did not have the password to the iPhone found

in his car.      The district court specifically discredited their

testimony, found that Cook violated the terms of his supervised

release by possessing the devices, and sentenced Cook to time

served and imposed an additional term of supervised release.                  He

noted a timely appeal.      We affirm.

     We review a district court’s judgment revoking supervised

release for abuse of discretion, and its factual findings for

clear error.     United States v. Padgett, 788 F.3d 370, 373 (4th

Cir.), cert. denied, 136 S. Ct. 494 (2015); 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)

(2012); Copley, 978 F.2d at 831.                   “[A] preponderance of the

evidence . . . simply requires the trier of fact to believe that

the existence of a fact is more probable than its nonexistence.”

United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)

(internal quotation marks omitted).

     Cook    argues,    first,    that       the   district   court   erred   in

finding that he violated Special Condition 7 because it failed

to find that he actually possessed or used a computer and that

he   did    so   to    access    online       computer   services.       Cook’s

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interpretation of Special Condition 7 would limit violations to

actual use of a computer to access the internet.                           However, the

language clearly encompasses possession or use of a computer

that is capable of accessing the internet.                            Such restrictions

are routinely imposed on defendants convicted of sex offenses

involving    use    of    a    computer.           See,   e.g.,       United    States   v.

Carpenter, 803 F.3d 1224, 1239 (11th Cir. 2015) (noting that

“our    cases      have       uniformly       upheld       conditions          prohibiting

defendants convicted of sex offenses from accessing a computer

or the Internet for the duration of their supervised release”);

United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003)

(upholding condition of supervised release that the defendant

“shall not possess or use a computer with access to any on-line

service at any location, including employment, without written

approval from the probation officer”).                          Because the evidence

supported    a    finding      that    Cook       possessed     two    internet-capable

devices without prior approval or monitoring programs installed,

the    district    court      did     not   clearly       err   in    finding     that   he

violated Special Condition 7.

       Next, Cook argues that the district court erred in finding

a violation of Special Condition 7 by referring to the Computer

Monitoring Agreement because it is not part of the terms of his

supervised        release;       rather,          Special       Condition        7    only

“recommended” compliance with the Agreement.                          Cook also claims

                                              4
that,       by    allowing        the       probation       officer      to    administer         the

Computer Monitoring Program, the court impermissibly delegated

it authority to set the terms of supervised release.

       We        reject       both     of     these        arguments.          First,      Special

Condition 7 clearly prohibits the unauthorized use or possession

of the devices at issue, without reference to the Agreement.

And,     second,          probation         officers        “are     authorized       to     manage

aspects of sentences and to supervise probationers and persons

on supervised release with respect to all conditions imposed by

the court.”              United States v. Johnson, 48 F.3d 806, 808 (4th

Cir. 1995).          A court may not, however, delegate to a probation

officer      a     judicial          function,    as        such     a   delegation        violates

Article III of the Constitution.                           Id. at 808-09.        “To determine

if   a      court       improperly          delegated       the      judicial    authority        of

sentencing,          [courts]         have     drawn        a    distinction      between         the

delegation         to     a     probation      officer          of   a   ministerial        act    or

support service and the ultimate responsibility of imposing the

sentence.”          United States v. Nash, 438 F.3d 1302, 1304-05 (11th

Cir. 2006) (internal quotation marks omitted).                                “Where the court

makes the determination of whether a defendant must abide by a

condition,          it    is     permissible          to    delegate      to    the     probation

officer the details of where and when the condition will be

satisfied.”               Id.    (internal       quotation           marks,     brackets,         and

ellipsis omitted).

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       Here, the district court delegated to the probation officer

only the particular terms and conditions outlined in Special

Condition 7 and thus constituted a “ministerial act or support

service.”     Nash, 438 F.3d at 1304-1305.

       Finally, Cook argues that the evidence failed to show that

he    used   or    owned    any   unauthorized          internet-capable        computer.

Specifically, Cook relies on the testimony of two witnesses who

stated that: (1) the computers at issue were never used by him

and, with respect to the computer found in his bedroom, was not

capable of accessing the internet, and (2) he did not have the

password      to     the     iPhone.             However,    the      district     court

specifically discredited both witness’ testimony.                            Credibility

determinations       are    not    subject       to    review.      United    States   v.

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

       Accordingly, we find that the district court did not abuse

its     discretion         in     revoking        Cook’s         supervised     release.

Therefore, we affirm.             We dispense with oral argument because

the facts and legal contentions are adequately presented in the

materials     before       this   court   and         argument    would   not    aid   the

decisional process.

                                                                                AFFIRMED




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