               United States Court of Appeals
                        For the Eighth Circuit
                    ___________________________

                            No. 19-2669
                    ___________________________

                         United States of America

                     lllllllllllllllllllllPlaintiff - Appellee

                                        v.

                               Ivell M. Hagens

                   lllllllllllllllllllllDefendant - Appellant
                                    ____________

                 Appeal from United States District Court
                   for the District of Nebraska - Omaha
                               ____________

                         Submitted: May 11, 2020
                           Filed: June 3, 2020
                              [Unpublished]
                             ____________

Before COLLOTON, BEAM, and BENTON, Circuit Judges.
                           ____________

PER CURIAM.
       Ivell Hagens appeals the district court’s1 decision to revoke his supervised
release. He pleaded guilty to being a felon in possession, and was sentenced to thirty
months in prison, followed by thirty-six months of supervised release. He began
supervision in 2015, but has had his supervision revoked twice. At each revocation he
was sentenced to either imprisonment or a new period of supervised release or both.
Hagens began his current period of supervision in June 2018. In January 2019,
Hagens’ former girlfriend called the police to report a domestic disturbance involving
Hagens. Police responded to the call that evening and an officer’s body camera video
indicates that the victim told the officers that Hagens dragged her out of a car, struck
her multiple times in the face with open and closed fists, and choked her with both
hands. She reported that although she did not lose consciousness, she did have
restricted breathing. A forensics team arrived on the scene and took photographs of the
victim’s injuries.

        After Hagens was arrested and charged in state court with strangulation, the
victim decided not to cooperate, and the county attorney dropped the charges.
Nonetheless, Hagens’ probation officer pursued the petition for revocation that was
filed at the same time as the state charges, alleging that Hagens violated his conditions
of supervised release by engaging in criminal conduct.

        At the revocation hearing, one of the responding police officers testified for the
government. The officer indicated that in addition to the video evidence, he personally
observed that the victim had fresh scratches on her neck. The government also
introduced the forensic photographs of these injuries. Hagens’ probation officer
testified about conversations she had with the victim regarding the assault and past
domestic violence issues between Hagens and the victim. The victim, however,
ostensibly testified for Hagens at the revocation hearing. She stated that while she did


      1
      The Honorable Joseph F. Bataillon, United States District Judge for the District
of Nebraska.

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call the police about an assault, she could not remember any specific details, and
actually answered “I’m not sure,” to many of the questions asked of her from both
defense counsel and the prosecutor on cross-examination. Hagens testified on his own
behalf and stated that while the two did have an argument, he denied assaulting his
former girlfriend.

       The district court credited the government witnesses and documentary evidence,
and specifically found that the victim looked nervous and “afraid on a number of
levels” while testifying. Thus, the court found the government had proved a violation
by a preponderance of the evidence because the assault more than likely had occurred.
The court sentenced Hagens to a year and a day in prison with no supervised release
to follow.

       On appeal, Hagens argues that the government did not meet its standard of proof
because the alleged victim had a history of lying to police and did not specifically say
that Hagens assaulted her on the night in question. The district court has the discretion
to revoke supervised release if the government proves, by a preponderance only, that
the defendant violated a condition of supervised release. United States v. Ahlemeier,
391 F.3d 915, 919 (8th Cir. 2004). At revocation hearings, factual findings are
reviewed for clear error, and credibility determinations are virtually unreviewable.
United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).

        The district court did not abuse its discretion in revoking Hagens’ supervised
release. Although the victim claimed a faulty memory at the hearing, the district court
observed her demeanor and found that she seemed frightened about testifying. At any
rate, the government’s testimonial and documentary evidence was more than enough
to meet its burden to show that Hagens violated the conditions of supervision by
engaging in criminal conduct. Accordingly, we affirm.
                         ______________________________


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