                                                                 [DO NOT PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS
                FOR THE ELEVENTH CIRCUIT
                                                                          FILED
                      -------------------------------------------U.S. COURT OF APPEALS
                                   No. 04-16595                    ELEVENTH CIRCUIT
                                                                    OCTOBER 18, 2005
                           Non-Argument Calendar
                                                                    THOMAS K. KAHN
                     --------------------------------------------        CLERK

                      D.C. Docket No. 95-00055-CR-1


UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                       versus

FRANK JAMES ABSTON, JR.,
a. k. a. Fred Abston,

                                                      Defendant-Appellant.

           ----------------------------------------------------------------

              Appeal from the United States District Court
                   for the Southern District of Alabama
           ----------------------------------------------------------------

                               (October 18, 2005)

Before EDMONDSON, Chief Judge, CARNES and MARCUS, Circuit
Judges.
PER CURIAM:



      Defendant-Appellant Frank James Abston, Jr. appeals his sentence for

violating the terms of his supervised release under 18 U.S.C. § 3583(e). No

reversible error has been shown; we affirm.

      In 1995, Abston pled guilty to one count of conspiracy to possess with

intent to distribute crack cocaine in violation of 18 U.S.C. § 846. He was

sentenced to serve 180 months in prison, which was later reduced to 120 months,

and to complete 5 years supervised release which began in December 2003. In

April 2004, Abston was arrested for violating the conditions of his release. After a

hearing in the Southern District of Alabama, the court found Abston guilty of

aiding and abetting in the possession with intent to distribute four pounds of

marijuana. The court then revoked Abston’s term of supervised release and

sentenced him to serve 46 months in prison.

      Pursuant to the requirements of 18 U.S.C. § 3583(d), Abston’s term of

supervised release included the condition that he “not commit another federal,

state, or local crime during the term of supervision” nor that he “unlawfully

possess a controlled substance.” At the revocation hearing in the Southern District



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of Alabama, the court heard testimony from Louisiana State Trooper Donald

Pierce that on 6 April 2004 he pulled over a vehicle driven by Abston in which

Abston’s uncle, Clarence Lawson, was a passenger. Abston had a suspended

driver’s license but told Trooper Pierce he had left his license at home; he then

provided a false name and birthdate. Abston later provided correct information

only after Pierce confronted him. When asked about their travels, both Abston

and Lawson lied to Pierce: Abston said he was coming from Baton Rouge, where

he had picked up Lawson, but had “no idea” where he had been in Baton Rouge

nor did he know anything about Baton Rouge. Lawson said they were coming

from Houston, Texas, but that he was hitchhiking and had never met Abston

before that day.1

       After Abston initially hesitated, Pierce obtained his permission to search the

car and discovered four pounds of marijuana in a backpack on the front passenger

floor. Pierce testified that neither Abston nor Lawson acted shocked that Pierce

found drugs in the car. At Abston’s urging, Lawson admitted ownership of the

drugs. Pierce “had no doubt,” however, that Abston was aware of the drugs based



   1
    The investigation later confirmed that both men were returning from Houston, Texas. Pierce
explained the discrepancy to the court that Abston likely “was trying to distance himself from Texas
because he knew law enforcement considers Texas as a source location for narcotics.” Pierce
concluded that Lawson likely “forgot the story.”

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on his observations and Abston’s reactions. Abston did not dispute Pierce’s

testimony at the district court hearing.

      The record further shows that Abston pled no contest in Louisiana state

court to a misdemeanor charge of possession of marijuana. Abston contends his

plea was made after the state court judge assured him that if he pled no contest he

would not be admitting that he knew about the marijuana. The district court

considered this plea among the evidence indicating that Abston committed a

crime. An order by a Louisiana state judge subsequent to the district court’s

judgment appears to have dismissed the state prosecution. Abston argues that the

district court erroneously relied on his state court plea as evincing guilt, and he

submits he is entitled to a new revocation hearing because the state prosecution

was dismissed.

      18 U.S.C. § 3583(e) permits a district court to revoke a term of supervised

release and to impose a prison sentence if the court “finds by a preponderance of

the evidence that the defendant violated a condition of supervised release.” The

district court found Abston guilty of violating his supervised release: 1) leaving

the district without permission; 2) possessing a controlled substance; 3)

committing a crime; and 4) associating with an individual engaged in criminal

activity. We “review the district court’s conclusion that appellant violated the

                                           4
terms of his supervised release for abuse of discretion.” United States v.

Copeland, 20 F.3d 412, 413 (11th Cir. 1994) (per curiam).

       Before revoking the supervised release, the district court must consider

factors outlined in 18 U.S.C. § 3553 and the Federal Sentencing Guidelines to

determine the grade of the violation and the applicable penalty. 18 U.S.C. §

3583(e). See also id. § 3553(a)(4)(B). It is uncontroverted that Abston violated a

condition of his release by leaving the Southern District of Alabama without

permission. This violation alone subjected Abston to a recommended sentence of

7-13 months in prison. U.S.S.G. § 7B1.4 (recommending sentence for Grade C

violation by defendant with Criminal History Category V). At issue in this appeal

is whether Abston knew about the marijuana in his car. If Abston knew about the

drugs (as the district court so found by a preponderance of the evidence), he is

guilty of a Grade A violation2 with a recommended sentence of 46-57 months.

U.S.S.G. § 7B1.4.

        Abston claimed throughout the proceedings that he did not know about the

marijuana. The district court, however, credited Trooper Pierce’s testimony over


  2
    Grade A violations are “conduct constituting (A) a federal, state, or local offense punishable by
a term of imprisonment exceeding one year that (i) is a crime of violence, (ii) is a controlled
substance offense, or (iii) involves possession of a firearm or destructive device of a type described
in 26 U.S.C. § 5845(a); or (B) any other federal, state, or local offense punishable by a term of
imprisonment exceeding twenty years.” U.S.S.G. § 7B1.1(a)(1).

                                                  5
Abston’s and relied on “the circumstantial evidence which does not lie” in

concluding that Abston knew about the drugs. As we have stated previously:

“The credibility of a witness is in the province of the factfinder and this court will

not ordinarily review the factfinder’s determination of credibility.” Copeland, 20

F.3d at 413 (citing United States v. Billue, 994 F.2d 1562, 1563 (11th Cir. 1993)).

      The district court did not abuse its discretion when it found that Abston

knowingly aided and abetted his uncle in possessing marijuana with intent to

distribute. The record includes evidence that Abston lied about who he was and

where he was going, hesitated before consenting to a search of his car, did not

seem surprised to learn that drugs were found in his car, and urged his passenger

to admit ownership of the drugs. As the district court explained: “You lied about

your name, you lied about going to Houston. There’s also testimony that you were

not shocked when the marijuana was recovered or uncovered from the bag,

indicating that you had knowledge that it was there.” This evidence provided a

sufficient factual basis for the district court to conclude by a preponderance of the

evidence that Abston committed a crime and violated his supervised release.

      Abston’s assertion that the district court erroneously relied on his state court

plea is without merit. Abston’s supervised release was revoked, in part, because

he--in fact--committed a crime in violation of the conditions of his release. It is

                                           6
not necessary that the underlying crime at issue in release-revocation proceedings

be the subject of an independent prosecution. When classifying supervised release

violations, the Sentencing Guidelines instruct courts that violations of the

condition against committing crimes

      may be charged whether or not the defendant has been the subject of
      a separate federal, state, or local prosecution for such conduct. The
      grade of violation does not depend upon the conduct that is the
      subject of criminal charges or of which the defendant is convicted in a
      criminal proceeding. Rather, the grade of the violation is to be based
      on the defendant’s actual conduct.

U.S.S.G. § 7B1.1(a)(1) (2004) comment. (n.1) (emphasis added).

      Because Grade A violations are to be determined based on actual conduct, it

is immaterial whether the state of Louisiana vacated Abston’s conviction. The

record below includes ample testimonial and circumstantial evidence of Abston’s

actual conduct to support the district court’s findings even when considered

independent of his plea in state court. Nothing in the record indicates that

Abston’s state court plea was given any greater weight than the myriad of other

facts used to establish his actual conduct. We therefore conclude that the district

court did not abuse its discretion in revoking Abston’s supervised release and

sentencing him to 46 months in prison.

      AFFIRMED.



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