                                                                    [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT          FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                      NOVEMBER 9, 2011
                                            No. 11-10585
                                                                         JOHN LEY
                                        Non-Argument Calendar
                                                                          CLERK
                                      ________________________

                               D.C. Docket No. 1:05-cr-00256-ODE-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                 versus

ROBERT LEE CLARK,

llllllllllllllllllllllllllllllllllllllll                             Defendant-Appellant.

                                      ________________________

                            Appeal from the United States District Court
                               for the Northern District of Georgia
                                  ________________________

                                           (November 9, 2011)

Before EDMONDSON, CARNES and FAY, Circuit Judges.

PER CURIAM:
      Robert Clark appeals the district court’s revocation of his supervised release

from prison based on his commission of a new criminal offense. He contends that

the district court improperly relied on felony sex charges that were later not

prosecuted and abused its discretion in revoking his supervised release.

                                          I.

      In 2005 Clark pleaded guilty to conspiracy to possess a stolen firearm in

violation of 18 U.S.C. § 371. The district court sentenced him to 60 months in

prison and 3 years of supervised release. A condition of that release required that

Clark not commit another federal, state, or local crime.

      Two years after being released from prison, a woman who was intimately

involved with Clark reported to police that Clark may have sexually assaulted her

four-year-old daughter. The victim reported that Clark molested and raped her.

On June 5, 2009 a Fulton County Superior Court grand jury indicted Clark on six

felony charges: aggravated child molestation, aggravated sodomy, rape, cruelty to

children in the first degree, and two counts of child molestation.

      But the State’s case against Clark unraveled. Forensic reports showed that

his DNA was not in the victim’s undergarments. A psychologist who Clark’s

counsel requested to review the case reported that the victim fabricated stories and

made inconsistent statements.


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      As a part of a plea agreement Clark pleaded guilty to simple assault, a lesser

included misdemeanor offense of his cruelty to children charge. The felony

charges were dead-docketed, which means the State abandoned prosecuting those

charges. Clark’s federal supervising probation officer then filed a petition with the

district court to revoke Clark’s supervised release based on Clark’s guilty plea and

the six-felony indictment.

      At a December 29, 2010 revocation hearing Clark admitted to entering the

guilty plea. The government acknowledged that it could not prove he committed

the six felony charges by a preponderance of the evidence, the standard of proof

for revoking custodial release. Clark and the government disagreed, however, over

the length of the statutory sentence for the violation of his supervised release.

Clark wanted a sentence within the 8 to14 month guidelines range; the government

wanted the statutory maximum of 24 months. The district court requested a

transcript of his plea colloquy from the simple assault case and continued the

hearing until it received that evidence.

      Both sides presented exhibits, including a transcript of the plea colloquy, and

a second hearing was held a month later. The government lowered its sentence

request to 14 months after reviewing Clark’s exhibits, which cast doubt on the




                                           3
victim’s sexual abuse allegations. Clark then asked for a sentence of 12 months

and a day.

      The district court revoked his supervised release “based on that [simple

assault] conviction.” In determining Clark’s sentence, the district court considered

his criminal history, which included a rape conviction, and found that he posed a

“tremendous risk” for recidivism. The court also found that “some improper

sexual contact” occurred between Clark and the victim, despite the State’s decision

not to pursue the felony charges. The district court concluded that the guidelines

range of 8 to 14 months was inadequate and it sentenced Clark to 24 months in

prison, the statutory maximum. At the hearing Clark objected to the sentence on

the grounds that it was substantively unreasonable.

      Clark now contends that the district court abused its discretion in finding, by

a preponderance of the evidence, that he violated the conditions of his supervised

release based on the felonies “which the government abandoned and was not

proceeding on.”

                                         II.

      We review a district court’s judgment revoking supervised release for abuse

of discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994).

However, when the defendant objects to the revocation for the first time on appeal,


                                          4
we review only for plain error. United State v. Gresham, 325 F.3d 1262, 1265

(11th Cir. 2003). “Under the plain-error standard, [the defendant] must show that

(1) an error occurred; (2) the error was plain; (3) it affected his substantial rights;

and (4) it seriously affected the fairness of the judicial proceedings.” Id.

      “Under 18 U.S.C. § 3583(e), a district court may, upon finding by a

preponderance of the evidence that a defendant has violated a condition of

supervised release, revoke the term of supervised release . . . .” United States v.

Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006); see 18 U.S.C. § 3583(e)(3). We

have held that due process requires the district court to state “the reasons for the

revocation of supervised release and the evidence the decision maker relied upon.”

United States v. Copeland, 20 F.3d 412, 414 (11th Cir. 1994).

                                           III.

      Clark contends that the district court abused its discretion by finding by a

preponderance of the evidence that he violated his supervised release based on the

felony indictments that the State later abandoned. Because Clark never objected to

the revocation of his supervised release at his second revocation hearing, we will

review the district court’s decision using the plain-error standard.

      A condition of Clark’s supervised release was that he would not commit any

federal, state, or local crime. Yet he pleaded guilty to committing the crime of


                                            5
simple assault on a four-year-old victim in May 2009, and at the time of that

assault, Clark had more than a year remaining on his supervised release.

       At his second revocation hearing, Clark admitted to the district court that he

had pleaded guilty to the simple assault charge, and the government introduced

evidence showing that he had done so. A preponderance of evidence established

that Clark violated the condition of his supervised release that he refrain from

committing another crime. See Sweeting, 437 F.3d at 1107; 18 U.S.C. §

3583(e)(3). The district court stated the reason for the revocation was Clark’s

conviction for the simple assault charge. See Copeland, 20 F.3d at 414.

       Because the record establishes that the district court did not rely on the

dropped felony child-sex-abuse charges, but instead based its decision to revoke

his supervised release on Clark’s admission that he pleaded guilty to the lesser-

included offense of misdemeanor simple assault, the district court did not commit

any error, much less plain error, in revoking Clark’s supervised release. 1

AFFIRMED.




       1
        While Clark objected to the substantive reasonableness of his sentence at the revocation
hearing, he did not raise that issue in his brief to this Court. Therefore, it is abandoned. See
United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003).

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