Case: 20-30016       Document: 00515535627             Page: 1     Date Filed: 08/20/2020




            United States Court of Appeals
                 for the Fifth Circuit                                        United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                                                               August 20, 2020
                                   No. 20-30016
                                 Summary Calendar                               Lyle W. Cayce
                                                                                     Clerk


 United States of America,

                                                                 Plaintiff—Appellee,

                                         versus

 Timothy Ivey, also known as Tee,

                                                             Defendant—Appellant.


                  Appeal from the United States District Court
                     for the Eastern District of Louisiana
                           USDC No. 2:06-CR-234-4


 Before Jones, Barksdale, and Stewart, Circuit Judges.
 Per Curiam:*
        Timothy Ivey pleaded guilty to conspiracy to possess, with intent to
 distribute, 500 grams or more of a mixture or substance containing a
 detectable amount of cocaine, in violation of 21 U.S.C. §§ 841(a)(1),
 (b)(1)(B) and 846. He was sentenced to 180-months’ imprisonment and


        *
           Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined that this opinion
 should not be published and is not precedent except under the limited circumstances set
 forth in 5TH CIRCUIT RULE 47.5.4.
Case: 20-30016      Document: 00515535627            Page: 2   Date Filed: 08/20/2020




                                  No. 20-30016


 eight-years’ supervised release. Following his release to supervision, Ivey
 was arrested on charges of second-degree battery and aggravated assault with
 a deadly weapon. The district court revoked Ivey’s supervised release and
 sentenced him to, inter alia, 60-months’ imprisonment. Ivey challenges the
 district court’s revoking his supervised release.
        Our court reviews for abuse of discretion a district court’s decision to
 revoke supervised release. United States v. Spraglin, 418 F.3d 479, 480 (5th
 Cir. 2005). A district court does not abuse its discretion in revoking
 defendant’s supervised release if a preponderance of the evidence satisfies
 the court that defendant failed to comply with the conditions of supervised
 release. United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995); see 18
 U.S.C. § 3583(e)(3). In reviewing a challenge to the sufficiency of the
 evidence for that decision, our court “must view the evidence and all
 reasonable inferences that may be drawn from the evidence in a light most
 favorable to the government”. United States v. Alaniz-Alaniz, 38 F.3d 788,
 792 (5th Cir. 1994) (internal quotation marks and citation omitted).
        Viewed in the requisite light most favorable to the Government, the
 revocation-hearing evidence was sufficient for a reasonable trier of fact to
 conclude that Ivey violated the conditions of his release. Based on the
 evidence before it, including Deputy Naccari’s testimony, the photographic
 evidence, and the victim’s written statement taken at the time of the incident,
 the district court found that Ivey argued with the victim at a bar, followed
 him to the parking lot with a gun, threatened to shoot him, then struck him
 repeatedly in the head with the butt of the gun.
        Ivey asserts the court ignored substantial evidence that the victim’s
 earlier identification of him as the attacker was unreliable. Although the
 district court also had before it the victim’s revocation-hearing testimony
 recanting his prior identification of Ivey, the court was “free to choose among




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                                  No. 20-30016


 reasonable constructions of the evidence”. Id. (internal quotation marks and
 citation omitted). The record shows that the court specifically accounted for
 the victim’s intoxication and injuries when making the finding that his
 statements to Deputy Naccari identifying Ivey as his assailant were true and
 that his later testimony to the contrary was not credible.
        The crux of Ivey’s appeal is that the district court’s credibility
 determination was erroneous. Because Ivey has not, as required, shown that
 the victim’s earlier identification of him was “incredible as a matter of law”,
 our court defers to the district court’s credibility determination. Id. at 791
 (internal quotation marks and citation omitted).
        Ivey also asserts the admission of Deputy Naccari’s hearsay testimony
 regarding statements the victim made at the scene and at the hospital violated
 Ivey’s Sixth Amendment right of confrontation. The Confrontation Clause
 does not bar admission of prior testimonial statements when the declarant
 appears for cross-examination. Crawford v. Washington, 541 U.S. 36, 59 n.9
 (2004). Because the victim was also called as a witness and questioned
 extensively by defense counsel, Deputy Naccari’s testimony did not raise
 confrontation concerns.
        A preponderance of sufficiently reliable evidence satisfied the district
 court that Ivey violated the terms of his supervised release by committing an
 aggravated assault. Therefore, the district court did not abuse its discretion
 in revoking Ivey’s supervised release. See Alaniz-Alaniz, 38 F.3d at 792;
 Spraglin, 418 F.3d at 481; McCormick, 54 F.3d at 219.
        AFFIRMED.




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