               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0605n.06

                                       Case No. 18-5362

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                 FILED
                                                                            Dec 03, 2018
UNITED STATES OF AMERICA,                          )
                                                                        DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )       ON APPEAL FROM THE UNITED
v.                                                 )       STATES DISTRICT COURT FOR
                                                   )       THE WESTERN DISTRICT OF
TIMOTHY COOK,                                      )       TENNESSEE
                                                   )
       Defendant-Appellant.                        )
                                                   )

       BEFORE: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

       SUTTON, Circuit Judge. Memphis police found Timothy Cook sitting in the front

passenger seat of a parked car with a loaded firearm, marijuana, and ecstasy. Cook was a convicted

felon, and the terms of his supervised release prohibited him from committing another crime or

possessing a firearm. In view of these new offenses, the district court revoked his supervised

release and sentenced him to 24 months in prison. We affirm.

       In 2011, Cook pleaded guilty to being a felon in possession of a firearm. In 2015, he left

prison on supervised release, with the condition that he not commit another crime or possess a

firearm. Before long, he assaulted someone, and the court revoked his release and sentenced him

to 8 months, followed by 15 months of supervised release. Cook left prison again on November

20, 2017. Ten days later, Memphis police arrested him again after finding him in a parked car

with a loaded gun and drugs—the conduct at issue in today’s appeal.
Case No. 18-5362, United States v. Cook


       The district court held a hearing to determine whether to revoke Cook’s supervised release

again. One witness, Officer Michael Bartlett, testified. Bartlett said he saw a parked car with the

engine running and the lights off. When he shined a light on the car, he saw the car’s lone occupant

reach “towards the passenger door as if he was trying to conceal something.” R. 93 at 19. Bartlett

approached, Cook rolled down the window, and Bartlett smelled marijuana. A search revealed a

loaded firearm and drugs in the passenger-side door. On top of that, Bartlett testified that the

police found another person’s identification in the car’s cup holder and that an unidentified woman

arrived at the scene saying that the car belonged to her and that she had let her boyfriend use it.

       At allocution, though not in the liability phase of the hearing, Cook told the court that the

“charges” against him were “not true.” Id. at 53. He complained that Officer Bartlett’s testimony

amounted to “fabricated lies,” id. at 55, noting that Officer Bartlett testified that the car had been

running but the lights were off. According to Cook, “the lights come on” in new cars whenever

someone turns on the ignition. Id. Cook also claimed that another man had originally sat in the

passenger seat and went inside a house, after which Cook “jumped in the front seat” to charge his

phone. Id. at 56. At the end of it all, Cook maintained his innocence: “I don’t need no gun. They

can run them fingerprints. It ain’t mine.” Id. at 57.

       When all was said and done, the court found that Cook constructively possessed the gun

and drugs, and imposed a 24-month sentence. Cook appeals.

       A district court may revoke supervised release if it finds by a preponderance of the evidence

that a defendant violated a condition of release. See 18 U.S.C. § 3583(e)(3). We review the court’s

decision for abuse of discretion. United States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009).

Under this deferential standard, we analyze legal determinations anew, id., but may not overturn




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Case No. 18-5362, United States v. Cook


factual findings unless we develop “a definite and firm conviction that a mistake has been

committed,” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948).

       Cook claims that the district court improperly ignored his statements during allocution.

According to Cook, “the district court believed it could only consider Officer Barlett’s testimony”

and erroneously felt bound by the Federal Rules of Evidence to exclude Cook’s remarks.

Appellant’s Br. 13.

       The Federal Rules of Evidence generally do not apply in informal hearings such as a

proceeding to revoke supervised release. But a judge may follow the Rules’ principles as a matter

of discretion. See United States v. Givens, 786 F.3d 470, 473 (6th Cir. 2015). When faced with a

defendant offering evidence at allocution, a court may discount the evidence because it lacked the

proper attributes to assess credibility, such as cross-examination. See id.

       As we see it, Cook misapprehended what the court was doing. It did not intend Cook’s

allocution as an opportunity to provide new evidence. Cook after all had already chosen to put the

government to its proof, after which the lawyers presented arguments and the judge made a finding

of fact that Cook constructively possessed the weapon and drugs. Instead, when the court invited

Cook to speak, it suggested that Cook might want to acknowledge a woman who accompanied

Cook to court, apparently Cook’s mother. When Cook had trouble finding words, the court offered

another suggestion: Cook should describe his work. “That’s an easy place to start and a pretty

safe spot.” R. 93 at 52.

       Cook began speaking and, before long, he offered purported evidence and quasi-legal

arguments to the effect that he did not violate the terms of his supervised release. In response, the

district court said it had encountered situations in which a defendant spoke “after the evidence was

closed and after arguments of counsel.” Id. at 55. Rather than ignore Cook’s statements altogether,



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Case No. 18-5362, United States v. Cook


the court evaluated each of them. After Cook said he didn’t “tote guns” or “sell drugs,” id. at 53,

for instance, the judge explained the difference between actual and constructive possession. When

Cook said he jumped into the front seat to charge his phone and the police should check the gun

for fingerprints, the court responded by noting it didn’t “have a hypothetical” and explained the

difference between a violation of supervised release and the substantive gun charge. Id. at 58. The

court noted that it had “facts” contradicting Cook, such as the “gun in the pocket of the door

immediate to [Cook’s] right.” Id.

       This all explains why the court deemed it “important” to have all “information . . . in a

form that we can receive” and that “can be relied on.” Id. These comments do not imply that the

district court thought itself bound to comply with the Federal Rules of Evidence. They suggest

instead that the court chose to deem less credible or inherently unreliable information offered in

an allocution. That choice was the court’s prerogative. See Givens, 786 F.3d at 473.

       Cook persists that the district court’s comments about “evidence [being] closed” and the

“form” of information show that the court felt obliged to follow the Federal Rules of Evidence.

But neither of these comments mentioned the Rules or suggested that the court needed to observe

them. Cook’s preferred inference is neither the best one nor the required one.

       Cook complains that the court’s short reference to hypotheticals makes it “impossible to

tell exactly what the court was referring to” and that some of Cook’s remarks were not

hypothetical. Appellant’s Br. 14–15. But Cook can’t have it both ways, interpreting stray remarks

to his benefit but ignoring other comments to his detriment. The district court with patience and

compassion merely tried to explain why it revoked Cook’s supervised release.

       Cook adds that aspects of his testimony were consistent with Bartlett’s account of events,

such as the appearance of the unidentified woman, and so the district court needed to “at least



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Case No. 18-5362, United States v. Cook


review Mr. Cook’s testimony.” Id. at 15. But the court did evaluate Cook’s statements and found

they lacked credibility.

       We affirm.




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