[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 16, 2011
No. 11-12958 JOHN LEY
CLERK
Non-Argument Calendar
________________________
D.C. Docket No. 5:99-cr-00004-RS-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
PHYNERRIAN Q. MANNING,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(November 16, 2011)
Before EDMONDSON, MARCUS and MARTIN, Circuit Judges.
PER CURIAM:
Phynerrian Manning appeals his 33-month sentence imposed upon
revocation of his supervised release. No reversible error has been shown; we
affirm.
After serving a 120-month sentence for a drug trafficking offense, Manning
began an 8-year term of supervised release. While still on supervised release,
Manning’s probation officer filed a petition alleging that Manning had violated the
conditions of his supervised release by (1) possessing cocaine base with intent to
distribute, a felony in violation of Fla. Stat. § 893.13; (2) failing to notify his
probation officer ten days before a change in his residence; and (3) testing positive
for cocaine.
Manning admitted the second and third release violations but denied that he
possessed cocaine base with intent to distribute. The district court conducted a
revocation hearing on the issue, during which both sides presented evidence. The
court then concluded -- without elaboration -- that the government had proved by a
preponderance of the evidence that Manning had possessed cocaine base with
intent to distribute and, thus, had violated his supervised release. On appeal, we
concluded that the district court’s statement of reasons was insufficient and
remanded for the limited purpose of allowing the district court to set out its
reasoning for concluding that Manning violated the terms of his supervised
release.
On remand, the district court conducted a second revocation hearing,
2
allowing the parties to present arguments about evidence already in the record on
the date of revocation.1 In its written order, the district court described the
evidence against Manning and again concluded that the government had proved
Manning’s drug-related release violation by a preponderance of the evidence.
In this appeal, Manning argues that the evidence was insufficient for the
district court to find that he had possessed cocaine with intent to distribute. We
review a district court’s revocation of supervised release for abuse of discretion.
United States v. Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008). A
violation of a condition of supervised release must be proven by a preponderance
of the evidence. United States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006)
(citing 18 U.S.C. § 3583(e)(3)).
The district court did not abuse its discretion when it concluded that
Manning violated his supervised release. At the revocation hearing, Officer Scott
testified that, as part of a sting operation, a confidential informant set up a cocaine
purchase from Marilyn Scarborough. Scarborough agreed to obtain the cocaine
and to deliver it to the informant. While Scarborough’s house was under
1
The district court properly denied Manning’s motion to present new evidence developed
after the initial revocation proceeding because admitting such evidence would have exceeded the
scope of this Court’s limited mandate. See United States v. Tamayo, 80 F.3d 1514, 1520 (11th
Cir. 1996).
3
surveillance, a man -- whom police later identified as Manning -- arrived, entered
Scarborough’s house, and returned to his car five minutes later.2 A few minutes
after Manning left, Scarborough called the informant to say that she had obtained
the cocaine and then left her house to deliver it. Police officers stopped
Scarborough’s car and arrested her for drug trafficking.
Although Scarborough initially denied Manning’s involvement in the
cocaine deal, she later indicated to police that Manning was her supplier by
gesturing toward a room where she believed Manning was being held.
Scarborough also identified Manning in a photo line-up as the person who
delivered the cocaine to her house and, in a recorded statement two days later,
again identified Manning as her supplier.
Although the district court noted that some discrepancies existed in
Scarborough’s statements to police, the court credited her testimony against
Manning. In general, we will not review the district court’s determination of
credibility. United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994)
(explaining that “[t]he credibility of a witness is in the province of the factfinder
and this court will not ordinarily review the factfinder’s determination of
2
Manning testified that he stopped at Scarborough’s house to deliver a bag of children’s
clothing, not cocaine.
4
credibility”). Thus, we will not reverse a district court’s credibility determination
unless the court “credits exceedingly improbable testimony.” United States v.
Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (emphasis in original).
We agree with the district court’s determination that Scarborough’s
testimony against Manning was corroborated by the timeline of events
surrounding the arranged cocaine purchase. We also agree that Scarborough’s
initial reluctance to identify Manning could have been due either to her friendship
with or her fear of Manning. Because Scarborough’s testimony was not
“exceedingly improbable,” we accept the district court’s credibility determination.
The evidence supports the district court’s ruling, and we see no abuse of
discretion.
AFFIRMED.
5