UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4032
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
MARK A. PATILLO,
Defendant − Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:08−cr−00129−REP−1)
Submitted: May 27, 2016 Decided: September 15, 2016
Before GREGORY, Chief Judge, and KEENAN and DIAZ, Circuit
Judges.
Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Chief Judge Gregory and Judge Keenen joined.
Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia,
Robert J. Wagner, Assistant Federal Public Defender, Paul E.
Shelton, Research and Writing Attorney, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Alexandria, Virginia, S. David
Schiller, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
DIAZ, Circuit Judge:
Mark Patillo appeals the district court’s judgment revoking
his supervised release and sentencing him to twenty-four months
in prison, followed by a period of four years of supervised
release. Patillo contends there was insufficient evidence to
find that he violated the terms of his supervised release by
committing the offense of felony eluding in violation of
Virginia Code Section 46.2-817(B). For the reasons that follow,
we affirm.
I.
A.
A federal grand jury returned a four-count indictment
charging Patillo with possession with intent to distribute
heroin, in violation of 21 U.S.C. § 841; possession with intent
to distribute marijuana, in violation of 21 U.S.C. § 841;
possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c); and possession of a
firearm by a felon and user of controlled substances, in
violation of 18 U.S.C. § 922(g)(1), (3). Patillo pled guilty to
possession with intent to distribute heroin and possession of a
firearm in furtherance of a drug trafficking crime. The
district court sentenced Patillo to forty-one months’
incarceration on Count One and a consecutive sixty months’
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incarceration on Count Three, to be followed by a five-year term
of supervised release. On August 14, 2015, Patillo began his
ordered period of supervised release. The supervised release
term was conditioned on Patillo’s not committing another
federal, state, or local crime, or using a controlled substance.
On November 18, 2015, at approximately 10:00 p.m.,
Detective John Flores was driving an unmarked Chevy Impala
southbound on Ford Avenue in Richmond, Virginia. After Flores
crossed the intersection of Ford Avenue and Spotsylvania Street,
a Ford Explorer attempted to pass his vehicle on the right while
traveling in a designated parking lane. The driver of the
Explorer, later identified as Patillo, braked to avoid hitting a
parked car and abruptly stopped his vehicle fifteen feet in
front of Flores’s police cruiser.
Both vehicles came to a stop on Ford Avenue, just south of
the intersection where Spotsylvania meets Ford Avenue from the
west forming a dead end or T-intersection. Approximately five
seconds later, Patillo shifted his vehicle into reverse and sped
down Ford Avenue. When Patillo reached the intersection, he
turned onto Spotsylvania, still in reverse, and continued
backing down the street for forty to fifty yards.
Detective Flores activated his police cruiser’s lights and
siren. Without losing sight of Patillo, Flores pursued him by
similarly reversing his police cruiser down Ford Avenue, but
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instead of turning onto Spotsylvania as Patillo had done, Flores
drove slightly past the intersection.
By the time Flores turned right onto Spotsylvania, Patillo
was headed toward Ford Avenue at approximately thirty miles per
hour. Patillo drove through the intersection, disregarding a
stop sign, and collided with an SUV parked in a driveway across
Ford Avenue. Flores believed that he was in danger of being
struck by Patillo’s vehicle as it traveled through the
intersection and noted that the distance between the two
vehicles was approximately five feet. Patillo exited the
damaged Explorer and fled on foot. Flores eventually caught up
to Patillo in the backyard of a nearby residence and took him
into custody.
B.
Patillo’s probation officer filed a revocation petition,
alleging that Patillo violated the conditions of his supervised
release by using cocaine and committing the crimes of reckless
driving, failing to stop at the scene of an accident, and felony
eluding. Before the district court, Patillo admitted guilt as
to the first, second, and third violations, but he challenged
the charge of felony eluding. After hearing from witnesses, the
district court (1) determined that Patillo had committed all of
the violations, (2) revoked Patillo’s supervised release, and
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(3) sentenced him to twenty-four months’ incarceration followed
by four years of supervised release.
II.
Patillo appeals the district court’s judgment revoking his
supervised release for committing the offense of felony eluding
in violation of Virginia Code Section 46.2-817(B). He argues
the district court abused its discretion in evaluating the
credibility of contrasting witness testimony and contends there
was insufficient evidence to prove an essential element of the
offense.
We review the district court’s decision to revoke
supervised release for abuse of discretion. United States v.
Padgett, 788 F.3d 370, 373 (4th Cir. 2015), cert. denied, 136 S.
Ct. 494 (2015). To revoke supervised release, the sentencing
court must find by a preponderance of the evidence that a
defendant has violated a condition of supervised release. 18
U.S.C. § 3583(e)(3). We review for clear error the district
court’s findings of fact underlying the conclusion that a
violation occurred. Padgett, 788 F.3d at 373. There is clear
error if the court, after reviewing the record, is left with
“the definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer City, 470 U.S. 564,
573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S.
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364, 395 (1948)). However, “[i]f the district court’s account
of the evidence is plausible in light of the record viewed in
its entirety, the court of appeals may not reverse it even
though convinced that had it been sitting as the trier of fact,
it would have weighed the evidence differently.” United States
v. Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (quoting Anderson,
470 U.S. at 573-74).
A.
We first consider Patillo’s contention that the district
court erred in crediting the testimony of Detective Flores
regarding the distance Patillo drove in reverse on Spotsylvania.
The crux of Patillo’s argument is that if Flores was stopped on
Ford Avenue for approximately five seconds as Patillo began
driving down the street in reverse, he would have lost sight of
Patillo when he turned onto Spotsylvania and moved behind a
house located on the corner of the intersection.
According to Patillo, the district court should have
credited the testimony of his cousin Donyell Patillo, who was
standing on Ford Avenue in a driveway across the street from
where Flores’s police cruiser stopped. Donyell testified that
Patillo drove in reverse only a few feet down Spotsylvania, just
far enough to stop at the stop sign and align his vehicle with a
driveway located directly across the intersection.
Additionally, Donyell stated that once Patillo’s vehicle
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stopped, Flores made a U-turn on Ford Avenue, turned left
through the intersection, and made a second U-turn on
Spotsylvania to reposition himself behind Patillo, who by then
had crossed the intersection and entered the driveway. Thus,
according to Donyell, Patillo never ran through the stop sign or
came close to colliding with Flores’s police cruiser.
The government responds that credibility determinations
made during a supervised release revocation proceeding are not
reviewable, a contention that finds support in the case law. In
the context of revocation proceedings, our sister courts have
consistently held that witness credibility is quintessentially a
judgment for the trier of fact and thus virtually unreviewable
on appeal. United States v. Cates, 613 F.3d 856, 858 (8th Cir.
2010) (holding witness credibility is virtually unassailable on
appeal); United States v. Copeland, 20 F.3d 412, 413 (11th Cir.
1994) (per curiam) (finding credibility of a witness is in the
province of the district court and the appellate court will not
ordinarily review the factfinder’s determination); United
States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996) (stating
“credibility determinations are within the unique role of the
factfinder and we are loath to upset . . . the district court’s
findings” (citation omitted)); see also United States v.
Lindsey, 242 F. App’x 65, 66 (4th Cir. 2007) (per curiam)
(holding that a district court’s “evaluation of the credibility
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of contrasting witness testimony . . . may not be disturbed” on
appeal).
Here, however, we need not settle on the appropriate
standard of review because, even reviewing for clear error, we
would not overturn the district court’s findings. On this
record, there was sufficient evidence for the court to find that
after stopping on Ford Avenue for approximately five seconds,
Flores quickly backed down the street without losing sight of
Patillo’s vehicle as it turned onto Spotsylvania and traveled in
reverse for forty to fifty yards. Patillo’s challenge amounts
to an invitation (which we decline) for this court to reweigh
the evidence and substitute its own credibility determinations
for those made by the district court.
B.
We next consider whether the district court correctly found
that Patillo committed the offense of felony eluding in
violation of Virginia Code Section 46.2-817(B). Patillo argues
that the district court erred because his conduct did not
interfere with or endanger the operation of Flores’s vehicle or
endanger a person, including himself. We do not agree.
Under Virginia law, a person is guilty of felony eluding
if, “having received a visible or audible signal from any law-
enforcement officer to bring his motor vehicle to a stop, [he]
drives such motor vehicle in a willful and wanton disregard of
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such signal so as to interfere with or endanger the operation of
the law-enforcement vehicle or endanger a person.” Virginia Code
§ 46.2-817(B). Explaining the “endangerment” element, Virginia
courts have reasoned that “a manifest purpose of the statute is
to protect the public against a driver eluding police ‘so as
to . . . endanger a person.’” Tucker v. Commonwealth, 564
S.E.2d 144, 146 (Va. Ct. App. 2002) (quoting Virginia Code §
46.2-817(B)). Thus, “conduct that raises the specter of
endangerment is the evil contemplated and proscribed by the
statute.” Gray v. Commonwealth, 651 S.E.2d 400, 403 (Va. Ct.
App. 2007) (quoting Tucker, 564 S.E.2d at 146).
The statute does not require an individual to be at the
scene and narrowly escape injury or death; it requires only that
the defendant’s conduct create the “specter of endangerment.”
Coleman v. Commonwealth, 660 S.E.2d 687, 690 (Va. Ct. App. 2008)
(quoting Tucker, 564 S.E.2d at 146) (finding that traveling at a
high rate of speed through an unoccupied cul-de-sac and hitting
a curb constituted endangerment). The person endangered can be
the driver himself, the pursuing police officer, or anyone else
traveling on the road who is placed at risk as a result of the
defendant’s actions. Phelps v. Commonwealth, 654 S.E.2d 926,
927 (Va. 2008).
Here, Patillo interfered with and endangered the operation
of Detective Flores’s vehicle. Patillo entered the intersection
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at approximately thirty miles per hour, disregarded a stop sign
located on the corner, and traveled within five feet of
Detective Flores’s police cruiser. When Flores saw Patillo’s
vehicle coming toward him, he stopped on Spotsylvania, fearing
that he would be rammed. Although Patillo contends that Flores
was not forced to “swerve, brake, or take any action to avoid a
collision,” Appellant’s Br. at 17, and therefore was not
endangered, the district court was unconvinced, stating,
“[A]nybody who thinks he’s going to be rammed is going to remain
where he is to protect himself.” J.A. 87-88.
We hold that the district court did not abuse its
discretion in concluding that Patillo committed the offense of
felony eluding, in that Patillo’s conduct endangered and
interfered with the operation of Flores’s vehicle. We also
agree with the district court that Patillo’s conduct posed a
significant risk to the safety of others, including himself. By
driving through an intersection at thirty miles per hour,
without stopping at the stop sign, Patillo endangered anyone
traveling on the road that night, including other drivers,
pedestrians, and cyclists. The district court aptly described
the “specter of endangerment”: “[Patillo] flew across the
intersection without stopping thereby endangering anybody who
was coming down the street, any car who was coming down the
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street and himself.” J.A. 88. And that Patillo struck a parked
SUV serves as further proof that he endangered himself. Id.
Although Patillo accurately contends that Virginia courts
have yet to find that running a stop sign, without more,
constitutes felony eluding, that is not what happened here.
Instead, Patillo reversed down Ford Avenue at a high rate of
speed, made a reverse turn onto Spotsylvania, and traveled in
reverse for forty to fifty yards before driving back through the
intersection at thirty miles per hour.
Moreover, Patillo does not cite to a single case showing
that his conduct is insufficient to support a finding of
endangerment. Without such precedent he cannot show that the
district court abused its discretion.
III.
We affirm the district court’s judgment. 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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