UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4657
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELLIOT J. WINSLOW, a/k/a Little Black, a/k/a
Elliot W. Campbell,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. James H. Michael, Jr.,
Senior District Judge. (CR-94-35)
Submitted: February 13, 2004 Decided: July 26, 2004
Before TRAXLER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge
Affirmed by unpublished per curiam opinion.
Michael T. Hemenway, THE LAW OFFICES OF MICHAEL T. HEMENWAY,
Charlottesville, Virginia, for Appellant. John L. Brownlee, United
States Attorney, Nancy S. Healey, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Elliott J. Winslow appeals from the district court’s
order revoking his supervised release and imposing an
eighteen-month sentence of imprisonment. Winslow contends that
there was insufficient evidence to support the revocation, that the
district court abused its discretion in sentencing him above the
recommendation of the Sentencing Guidelines, and that the district
court’s ex parte meeting with the probation officer violated his
constitutional rights. We affirm.
We review the district court’s decision to revoke a
defendant’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 preponderance of the evidence. 18 U.S.C. § 3583(e)(3)
(West 2000 & Supp. 2003). Here, the district court’s findings that
Winslow violated the terms of his supervised release by submitting
false reports and moving without prior permission are supported
fully by the record.
While Winslow attempts to downplay the untruths in his
reports to his probation officer by terming them “mistakes,” even
his excuses do not fully explain the multiple errors. In any
event, the district court apparently weighed the contradictory
testimony and decided to credit the probation officer’s version.
It is not the province of this court to second-guess the
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credibility determinations of the factfinder. United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Winslow next argues that his sentence exceeded the
guideline range prescribed for his violations and that the court
failed to provide an explanation for the sentence imposed. We
review a district court’s order imposing a sentence after
revocation of supervised release for abuse of discretion. United
States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). Pursuant to
§ 3583(e)(3), Winslow faced a maximum sentence of five years for
the violations.
Chapter Seven of the Sentencing Guidelines sets forth
policy statements offering recommended sentencing ranges for
revocation of supervised release. Chapter Seven is advisory and
non-binding. Davis, 53 F.3d at 642. While the sentencing court
should consider the policy statements before imposing sentence, a
“court need not engage in ritualistic incantation in order to
establish its consideration” of the policy statements. Id. In
this case, the district court gave prior notice that it was
considering a sentence above the guidelines range, explicitly
demonstrating that it was familiar with the range and the relevant
policy statements. We therefore find that the imposition of
sentence did not constitute an abuse of discretion.
Finally, Winslow argues that an ex parte meeting between
the probation officer and the district court prior to the
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revocation hearing violated his rights to counsel, to confront
witnesses, and to due process. The record does not reflect that
such a meeting occurred, but the Government assumes for the sake of
argument that one took place.
Because Winslow did not object below, we review for plain
error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 732-35 (1993). A probation officer is “a neutral,
information-gathering agent of the court, not an agent of the
prosecution.” United States v. Johnson, 935 F.2d 47, 50 (4th Cir.
1991) (approving pre-sentence, ex parte meetings and describing
these communications as “nonadversarial”). The probation officer’s
activities here were akin to preparing a presentence report and
discussing the report with the court prior to initial sentencing,
a practice we approved in Johnson. In any event, because Winslow
is unable to show any bias or prejudice resulting from the
communication, he cannot show plain error.
Accordingly, we affirm the judgment of the district
court. 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
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