                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            SEPT 9, 2008
                             No. 08-10771                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 04-00265-CR-1-1

UNITED STATES OF AMERICA,


                                                               Plaintiff-Appellee,

                                  versus

WILLIE EDWARD HILL,
a.k.a. Willie Hill,
a.k.a. Ed Hill,
a.k.a. Edd Hill,


                                                         Defendant-Appellant.


                       ________________________

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

                           (September 9, 2008)

Before ANDERSON, BIRCH and HULL, Circuit Judges.
PER CURIAM:

      Willie Hill appeals the district court’s order revoking his supervised release

and sentencing him to 24 months’ imprisonment, 10 months above the advisory

guideline range. At the revocation hearing, Gwendolyn Miller, a nurse at College

Park Healthcare Center (CPHC), where Hill was enrolled in a residential drug

treatment program, testified that Hill grabbed her shirt in an offensive manner, and

a fellow CPHC resident, Jerry Porter, testified that Hill struck him without

provocation. Hill asserts that the evidence that he committed the violations was

“marked by inadequacy, inconsistency, and bias” and, therefore, was insufficient to

sustain the revocation of his supervised release. Next, Hill argues that his sentence

was unreasonable, noting that his sentence exceeded by ten months the guideline

range for his violation, and reasserting that the evidence was insufficient to

establish the violations. First, because the district court was entitled to credit the

testimony of Miller, a nurse at the residential healthcare center where Hill was

enrolled in a drug treatment program, and Porter, a fellow resident at the center, the

district court did not clearly err in finding that Hill had committed two acts of

battery, in violation of his supervised release. Second, because the district court

specifically considered Hill’s criminal history, as well as prior allegations that he




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had violated his supervised release, the court did not abuse its discretion in

imposing an above-guidelines sentence. Therefore, we AFFIRM.

                                 I. BACKGROUND

      In May of 2006, Hill was convicted of six counts of distribution of heroin, in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and 851. R1-46. He was sentenced

to 36 months’ imprisonment, which constituted an upward departure from his

guideline sentencing range of 24-30 months’ imprisonment, and 6 years’

supervised release. Id.; R6 at 3, 9. The conditions of Hill’s supervised release

included that he refrain from committing another crime and that he submit to

random drug and alcohol testing. R1-46 at 3. In August of 2007, following Hill’s

release from prison, a U.S. Probation Officer (USPO) petitioned the district court

for revocation of Hill’s supervised release because he had tested positive for the

use of cocaine. R2-63. This petition was withdrawn after the College Park

Healthcare Center (CPHC) agreed to accept Hill into a residential program. R7 at

58. In December 2007, the USPO once again petitioned the court to revoke Hill’s

supervised release, this time alleging that he had committed new criminal conduct

by (1) inappropriately touching a female nursing assistant, and (2) striking another

resident in the mouth, causing him to be hospitalized. Record Excerpts at Doc. R2-

64.



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       At the revocation hearing, Hill denied the violations. R7 at 2. The

government informed the court that it believed that Hill’s conduct constituted a

grade C violation, which would result in a guideline range of 8-14 months’

imprisonment if his supervised release were revoked. Id. at 3. Hill did not contest

this assertion. Gwendolyn Miller, a certified nursing assistant employed by CPHC,

testified that, while she was working, Hill pushed James Clemmons,1 another

resident, up to her, and Hill pulled up her shirt while Clemmons pulled down her

pants. Id. at 5-7. On cross-examination, Miller stated that she had been facing a

kiosk against a wall when Hill and Clemmons approached her from her right side,

and Hill “pulled [her] shirt down at the top,” but she did not report the incident

until the next day. Id. at 13-17. Hill was behind Clemmons’s wheelchair when the

incident occurred. Id. at 14-15. She stated that she had not experienced previous

problems with Hill, though she had complained of inappropriate remarks by

Clemmons. Id. at 9-10.

       Jerry Porter, a CPHC resident, testified that one day, while he and Hill were

playing cards for money, he thought that Hill was cheating, and when he reached to

take his money, Hill hit him twice in the mouth, which required him to visit the

hospital. Id. at 18-20. On cross-examination, Porter stated that, after Hill hit him,


       1
        Clemmons was initially identified as “Clemson,” however, in the remainder of the
hearing and record he is referred to as Clemmons.

                                              4
he threw a pole at Hill, but missed, and he acknowledged that, if it was determined

that he started the fight, he could be removed from the nursing home, which he did

not want to happen because he needed medical care. Id. at 25-28.

      Deek Cateau, an administrator at CPHC, testified that he had received

reports of the two incidents. Id. at 29, 32. The first report documented Miller’s

statements to Cateau that Hill and another resident cornered her in the hallway, and

Hill held her while the other resident pulled down her pants. Id. at 32. The second

report stated that two residents were involved in a fight, and through investigation

of this report, Cateau discovered that Hill was one of the residents involved in the

fight and the other resident required medical attention. Id. at 32-33. Defense

witness Brenda Lewis, a staff investigator for the Federal Defender Program,

testified that she interviewed Clemmons, who told her that he and Hill had not

planned to do anything to the nurse, and he had grabbed the nurse’s pants and

accidentally pulled them down. Id. at 37-39. On cross-examination, Lewis

acknowledged that the resident had told her that he was “playing” with the nurse,

and he could not remember the extent of Hill’s involvement. Id. at 43-44.

      The government argued that credible testimony and evidence established

that Hill committed the violations and asserted that Hill’s lengthy criminal history

and continued disobedience to rules and orders demonstrated the need for the court



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to impose the maximum term, i.e. 36 months’ imprisonment. Id. at 47-49. Hill

argued that the evidence did not establish that he had committed any violation of

his supervised release, in that, with regard to the first incident, Miller’s testimony

established that Clemmons, and not Hill, pulled down Miller’s pants, and Hill was

separated from Miller by Clemmons’s wheelchair. Id. at 49. He also noted

Clemmons’s statement to the investigator that he had not coordinated with Hill an

effort to expose Miller, which he argued was consistent with Miller’s statement

that she had not previously experienced problems with Hill. Id. at 50. With regard

to the second incident, he argued that there was no unbiased testimony establishing

that Hill, rather than Porter, who was angry over the card game, initiated the

altercation. Id. at 51. He also noted that Porter did not require any stitches or

treatment for the injury to his mouth. Id. Hill asked that, if the court decided to

revoke his supervised release, he be sentenced within the guideline range of 8-14

months for his violation, noting that he had a very low intelligence as well as

numerous mental disorders, and the alleged violations were misdemeanors at most.

Id. at 52-55.

      The court found that Miller’s and Porter’s testimony was credible and, based

on that testimony, found that Hill had violated the terms of his supervised release

by committing new criminal conduct. Id. at 57. The court stated that the purpose



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of revocation of supervised release was to protect others and to punish for failure

to follow rules. Id. The court sentenced Hill to 24 months’ imprisonment, noting

that it was imposing an above-guideline sentence because Hill had been previously

found in violation of his supervised release for cocaine usage, but was released to

the nursing home, and his criminal record was “as lengthy as any” the court had

seen. Id. at 58-59. Hill’s actions illustrated that supervised release had not been

beneficial. Id. at 58. Hill noted that he objected to the finding that he had violated

his supervised release, as well as to the length of the sentence imposed. Id. at 61.

                                 II. DISCUSSION

A.    Whether the district court clearly erred in its finding that Hill violated
      the terms of his supervised release

      On appeal, Hill asserts that the evidence that he committed the violations

was “marked by inadequacy, inconsistency, and bias” and, therefore, was

insufficient to sustain the revocation of his supervised release. Appellant’s Brief at

12. Regarding the first violation, he argues that the evidence was insufficient to

show that he inappropriately touched Miller, noting that: (a) Miller testified that

she had not had previous difficulties with Hill, while she had noted prior

inappropriate behavior from Clemmons; (b) Miller initially stated that Hill raised

her shirt, but later stated that “her shirt was not raised;” and (c) Clemmons stated

that Hill had not participated in any attempt to touch Miller and did not make clear

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whether Hill had touched Miller at all. Id. at 13-15. Moreover, he asserts that,

even assuming that he touched Miller, the record does not demonstrate that the

touch constituted a battery under Georgia law, as Miller was not physically harmed

and Hill’s alleged touch was not “objectively insulting or provoking.” Id. at 14-15.

Regarding the second incident, Hill argues that Porter, because he could be

removed from the nursing home if he were to be implicated in causing a fight, was

not a credible witness to establish that Hill had been the aggressor in their

altercation. Id. at 15-16.

      We review for an abuse of discretion the district court’s decision to revoke

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

The district court’s findings of fact made at the revocation proceeding are binding

and will not be overturned unless they are clearly erroneous. United States v.

Almand, 992 F.2d 316, 318 (11th Cir. 1993). We cannot find clear error unless we

are “left with a definite and firm conviction that a mistake has been committed.”

United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005) (quotation

omitted). Moreover, “[t]he credibility of a witness is in the province of the

factfinder and this court will not ordinarily review the factfinder's determination of

credibility.” United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).

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



                                           8
of the evidence that a defendant has violated a condition of supervised release,

revoke the term of supervised release” and require the defendant to serve prison

time instead of supervised release. United States v. Sweeting, 437 F.3d 1105, 1107

(11th Cir. 2006).

      The district court did not clearly err in finding the facts that formed the basis

of the revocation of Hill’s supervised release. With regard to the first incident,

Morris testified that Hill grabbed her shirt in a manner that was unwanted and

offensive, which, if deemed credible, was enough to establish that Hill had

committed a battery against her. See R7 at 7-8. While Hill points to alleged

inconsistencies in Morris’s testimony, particularly as to whether Hill pulled

Morris’s shirt up or down, Morris’s testimony was not inconsistent as to whether

Hill touched her in an unwanted and offensive manner, and, in any case, the district

court was entitled to determine that Morris was credible and to reject any inference

to the contrary. See Copeland, 20 F.3d at 413. With regard to the second incident,

again, while the district court could have declined to credit Porter’s testimony

based on his personal bias, the court was entitled to credit his testimony, and we

will not disturb the district court’s judgment in that respect. See id. Because the

testimony of Morris and Porter was sufficient, if believed, to establish that Hill

violated the terms of his supervised release, and because their testimony does not



                                           9
contain any elements that would create a definite and firm conviction that they

were not credible, we find no error with the revocation of Hill’s supervised release.

See Almand, 992 F.2d at 318.

B.    Whether Hill’s sentence was unreasonable

      Next, Hill argues that his sentence was unreasonable, noting that his

sentence exceeded by ten months the guideline range for his violation, and

reasserting that the evidence was insufficient to establish the violations. He argues

that the district court erred by considering an alleged prior positive drug test and

arrest, allegations of which Hill was not put on notice, nor given a chance to

contest. He asserts that the district court placed too much weight on his criminal

past, as the applicable guideline range, which was calculated with a criminal

history category VI, already reflected the nature of his criminal record. He

contends that the court gave insufficient consideration to mitigating circumstances

such as his old age, mental difficulties, and the fact that he has not recently been

convicted of any violent crimes.

      We review the sentence imposed upon the revocation of supervised release

for reasonableness. Sweeting, 437 F.3d at 1106-07. “[R]easonableness” review

“merely asks whether the trial court abused its discretion.” United States v. Pugh,

515 F.3d 1179, 1189 (11th Cir. 2008) (quoting Rita v. United States, 551 U.S. ___



                                           10
, ___ , 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007)). “The party who challenges

the sentence bears the burden of establishing that the sentence is

unreasonable . . . .” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir.

2006) (internal quotation omitted).

      With respect to sentences imposed outside the applicable guideline range,

the district court must “ensure that the justification is sufficiently compelling to

support the degree of the variance,” but extraordinary circumstances are not

required to justify such a sentence. Gall v. United States, 552 U.S. ___, ___, 128

S.Ct. 586, 595, 597, 169 L.Ed.2d 445 (2007). We “may consider the extent of the

deviation, but must give due deference to the district court’s decision that the

§ 3553(a) factors, on a whole, justify the extent of the variance.” Id. at ___, 128

S.Ct. at 597.

      Section 3583 of Title 18 of the United States Code provides that a district

court may revoke a term of supervised release and impose a sentence of

imprisonment for the violation after considering factors set forth in 18 U.S.C.

§ 3553(a)(1), (a)(2)(B)-(D), and (a)(4)-(7). 18 U.S.C. § 3583(e). These factors

include: (1) the nature and circumstances of the offense and the history and

characteristics of the defendant; (2) the need for the sentence imposed to afford

adequate deterrence; (3) the need to protect the public; (4) the need to provide the



                                           11
defendant with educational or vocational training or medical care; (5) the

Sentencing Guidelines range; (6) the pertinent policy statements of the Sentencing

Commission; (7) the need to avoid unwanted sentencing disparities; and (8) the

need to provide restitution to victims. 18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D), and

(a)(4)-(7). “The weight to be accorded any given § 3553(a) factor is a matter

committed to the sound discretion of the district court,” and we will not remand for

resentencing unless we are “left with the definite and firm conviction that the

district court committed a clear error of judgment in weighing the § 3553(a)

factors.” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007) (quotation and

citation omitted). Chapter 7 of the United States Sentencing Guidelines provides

guidance on the length of the sentence to be imposed after revocation, but Chapter

7 is not binding; the district court need only be aware of and consider its

recommendations. United States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir.

2000). The district court may consider all relevant conduct, including conduct for

which the offender was acquitted, in arriving at a reasonable sentence. United

States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005).

      Hill has not demonstrated that his sentence was unreasonable. The district

court specifically considered Hill’s prior criminal record, which it determined was

“as lengthy as any criminal record [it had] seen,” a finding that Hill did not contest.



                                          12
See R7 at 58-59. In addition, the court found that Hill was not amenable to

successful supervised release, noting that he had been previously placed into

nursing care following a petition to revoke his supervised release, a finding that

Hill did not contest. See id. at 58. While Hill now argues that he was not given an

opportunity to contest that the probation office had issued a prior petition for

revocation of supervised release based on cocaine usage, the original petition for

revocation of his supervised release, which contained the cocaine allegation, was in

the record, and he did not attempt to contest that allegation, and, therefore, there

was sufficient evidence for the court to find that the cocaine allegation was true,

notwithstanding the fact that Hill was not formally charged with or convicted of

that conduct. See Duncan, 400 F.3d at 1304. The district court was entitled to

place great weight on Hill’s criminal record, as well as on the fact that the

probation office had previously petitioned for revocation of his supervised release,

and to determine that those factors outweighed the countervailing factors that Hill

asserted, and there is nothing in the record to leave us with the definite and firm

conviction that the district court committed a clear error in judgment in its

weighing of the factors and imposition of an above-guidelines sentence. See Clay,

483 F.3d at 743; see also Gall, 552 U.S. at ___, 128 S.Ct. at 597.




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                               III. CONCLUSION

      For the reasons stated above, we find no error in the district court’s

revocation of Hill’s term of supervised release and the subsequent sentence

imposed. Accordingly, we AFFIRM.




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