UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4451
DONALD MAURICE CARMON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Henry C. Morgan, Jr., District Judge.
(CR-98-48)
Submitted: December 12, 2000
Decided: January 9, 2001
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Douglas J. Walter, MCDERMOTT & ROE, Hampton, Virginia, for
Appellant. Helen F. Fahey, United States Attorney, James Ashford
Metcalfe, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. CARMON
OPINION
PER CURIAM:
Donald Maurice Carmon appeals the revocation of his supervised
release term and the district court’s imposition of a one month prison
sentence and a term of supervised release of eleven months. Carmon
raises two issues on appeal: (1) he should be allowed a new hearing
because his probation officer allegedly sent him to the wrong court
building, causing Carmon to arrive late for the supervised release
revocation hearing and allegedly preventing Carmon from informing
counsel prior to the hearing that he desired a continuance to obtain
certain impeachment material against one of the government’s wit-
nesses; and (2) the evidence was insufficient to support the district
court’s finding that Carmon violated the terms of his supervised
release.
As Carmon concedes in his informal brief, the law is well estab-
lished that this court will not consider on appeal issues not first pre-
sented in the district court, absent plain error or where the refusal to
consider the issue would result in a fundamental miscarriage of jus-
tice. Muth v. United States, 1 F.3d 246, 250 (4th Cir. 1993). Carmon
alleges that he seeks to raise the issue of a new hearing in the first
instance before this court because he was not afforded an opportunity
to raise the issue at his supervised release violation hearing. We dis-
agree.
We have reviewed the record and find that, even assuming Carmon
was instructed to go to the wrong courthouse by his probation officer,
he did arrive at the proper venue before his hearing substantively
began, and there was ample opportunity for him to confer with coun-
sel and address the district court regarding his wish to present
impeachment evidence. Moreover, given the testimony of an indepen-
dent and unchallenged witness regarding Carmon’s role in the assault
and battery, which alone would support a finding that Carmon vio-
lated the terms of his supervised release, the impeachment evidence
Carmon sought to obtain against another witness would not have
changed the ultimate disposition of the case. Because Carmon’s rea-
sons for supporting his request for a new hearing do not give rise to
an exceptional circumstance, and the denial of the request for the new
UNITED STATES v. CARMON 3
hearing would not result in a fundamental miscarriage of justice, we
deny the request.
This court reviews the district court’s decision to revoke a defen-
dant’s supervised release for abuse of discretion. United States v.
Copley, 978 F.2d 829, 831 (4th Cir. 1992). The district court need
only find a violation of a condition of supervised release by a prepon-
derance of the evidence. Id.; 18 U.S.C.A. § 3583(e)(3) (West Supp.
2000). We find that the district court’s findings that Carmon violated
the terms of his supervised release are supported fully by the record.
While Carmon’s version of the altercation was corroborated by the
testimony of his companion at the time, it was directly contradicted
by the testimony of the victim of the assault and battery and the inde-
pendent witness. The district court apparently weighed the contradic-
tory testimony and decided to credit the victim’s version, explicitly
finding that Carmon was not truthful. It is not the province of this
court to second-guess the credibility determinations of the factfinder.
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Accordingly, we find that the district court’s determination that
Carmon violated the terms of his supervised release is supported suf-
ficiently by a preponderance of the evidence, and we therefore affirm
that determination. We dispense with oral argument because the facts
and legal contentions are adequately presented in the materials before
the Court and argument would not aid the decisional process.
AFFIRMED