                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-10614                ELEVENTH CIRCUIT
                                   Non-Argument Calendar             OCTOBER 18, 2010
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 2:03-cr-00184-MEF-CSC-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                Plaintiff - Appellee,

                                         versus

DATRIST MCCALL,

lllllllllllllllllllll                                            Defendant - Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Middle District of Alabama
                                ________________________

                                      (October 18, 2010)

Before BARKETT, HULL and WILSON, Circuit Judges.


PER CURIAM:

         Datrist McCall appeals the district court’s revocation of his term of
supervised release and its imposition of a 23-month prison sentence. He argues

that the district court (1) abused its discretion in finding that he violated

conditions of his supervised release, and (2) erred in sentencing him to 23 months’

imprisonment upon revocation of the release. Because the government proved by

a preponderance of the evidence that McCall violated conditions of his supervised

release, and because the statutory maximum term of imprisonment for McCall’s

violations is correctly calculated as 24 months—not one year as he asserts—we

affirm.

                       I.   Revocation of Supervised Release

       McCall argues that the district court abused its discretion when it decided to

disregard the prior statements of his girlfriend, Adrianna Johnson, who testified at

McCall’s January 5, 2010, preliminary hearing that he was not the person who shot

her.

       We review a district court’s revocation of a term of supervised release for

abuse of discretion. United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th

Cir. 2008) (per curiam) (citation omitted). Under 18 U.S.C. § 3583(e)(3), a district

court may revoke a term of supervised release if it finds by a preponderance of the

evidence that the defendant violated a condition of the release. United States v.

Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006) (per curiam). We generally decline

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to review a district court’s determinations as to a witness’s credibility. See United

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

      The district court did not abuse its discretion when it decided to disregard

Johnson’s prior testimony and police statement. Her testimony at the preliminary

hearing was inconsistent with her police statement identifying McCall as the shooter;

she even recanted that testimony later in the same preliminary hearing. Another

witness’s testimony at the revocation hearing established that Johnson was “a

compulsive liar.” Moreover, because Johnson did not testify at the revocation

hearing, the district court had no opportunity to assess her credibility. Given these

factors, the district court did not abuse its discretion when it disregarded Johnson’s

prior statements altogether .

      The district court properly credited the testimony and sworn statements of

Ophelia Smith, who identified McCall as the shooter after witnessing the shooting in

Johnson’s apartment. Smith’s testimony was consistent with the sworn statement she

gave the police soon after the shooting and the photographic evidence of bullet holes

in Johnson’s apartment. In light of the district court’s finding that Smith’s testimony

was credible, the government proved by a preponderance of the evidence that McCall

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violated the conditions of his supervised release when he possessed a firearm and shot

his girlfriend. Thus, the district court did not abuse its discretion in revoking

McCall’s supervised release.

                          II.    Imposition of 23-Month Sentence

       McCall further argues that the district court erred in sentencing him to 23

months’ imprisonment.           Under his interpretation of 18 U.S.C. § 3583(e), his

maximum sentence is properly calculated as 12 months’ imprisonment. He argues

that the offenses relevant to calculating the length of his sentence are the two non-

felonies that resulted in his second term of supervised release.

       Ordinarily, we review de novo a sentence imposed pursuant to the revocation

of a term of supervised release, United States v. Mazarky, 499 F.3d 1246, 1248 (11th

Cir. 2007), but where an appellant argues for the first time on appeal that his sentence

exceeds the statutory maximum, as McCall does here, we will review only for plain

error.1 See United States v. Nash, 438 F.3d 1302, 1304 (11th Cir. 2006) (per curiam)

(“We review the terms of a supervised release for abuse of discretion, but where the

defendant fails to object at the district court, we reverse only for plain error.”). “To

establish plain error, a defendant must show there is (1) error, (2) that is plain, and (3)


       1
         McCall has abandoned any argument as to the reasonableness of his sentence because he
failed to offer argument on this issue in his initial brief. See United States v. Jernigan, 341 F.3d
1273, 1283 n.8 (11th Cir. 2003).

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that affects substantial rights.” United States v. Moriarty, 429 F.3d 1012, 1019 (11th

Cir. 2005) (per curiam) (citation omitted).

      Here, the district court made no error, plain or otherwise, because it correctly

calculated the statutory maximum term of imprisonment as 24 months. Upon

revoking a term of supervised release, a court may:

      require the defendant to serve in prison all or part of the term of supervised
      release authorized by statute for the offense that resulted in such term of
      supervised release . . . except that a defendant whose term is revoked under
      this paragraph may not be required to serve on any such revocation . . . more
      than 2 years in prison if such offense is a Class C or D felony . . . .

18 U.S.C. § 3583(e)(3) (emphasis added). Contrary to McCall’s interpretation, the

imposition of penalties for violations of conditions of a supervised release is based

on the offense conduct that resulted in the original conviction, not the offense

conduct that triggered a new term of supervised release. See Johnson v. United

States, 529 U.S. 694, 701 (2000) (“We . . . attribute postrevocation penalties to the

original conviction.”). The conduct that resulted in McCall’s original conviction was

a Class C felony—the possession of a firearm by a convicted felon, a violation of 18

U.S.C. § 922(g)(1). Thus, under § 3583(e)(3), the maximum term of imprisonment

following revocation of McCall’s supervised release is two years. Accordingly, we

find that the district court did not err in imposing a 23-month sentence.

                                 III.   Conclusion

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      The district court (1) did not abuse its discretion in finding that McCall

violated conditions of his term of supervised release, and (2) properly sentenced him

to 23 months’ imprisonment upon revocation of the release.



AFFIRMED.




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