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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12993
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20763-CMA-2
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
EARL BALDWIN,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 12, 2021)
Before NEWSOM, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
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Earl Baldwin appeals the revocation of his term of supervised release after the
district court found that he violated a condition of that supervised release. Baldwin
argues that the district court, in making that finding, erroneously shifted the burden
of proof and did not fully consider his good-faith compliance efforts. We conclude
that these claims lack merit and therefore affirm the district court.
I. FACTUAL AND PROCEDURAL HISTORY
A jury convicted Earl Baldwin for conspiracy to defraud the United States
government with respect to claims, in violation of 18 U.S.C. § 286; conspiracy to
use unauthorized access devices, in violation of 18 U.S.C. § 1029(b)(2);
unauthorized use of access devices, in violation of 18 U.S.C. § 1029(a)(2); and two
counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). As a
result, the district court imposed a sentence of 84-months’ imprisonment to be
followed by a three-year-term of supervised release. This Court affirmed his
convictions and sentence in a prior appeal. See United States v. Baldwin, 774 F.3d
711, 735 (11th Cir. 2014).
On May 14, 2019, Baldwin began his term of supervised release. Among the
conditions that the district court imposed for the supervised release was that Baldwin
“shall maintain full-time, legitimate employment and not be unemployed for a term
of more than 30 days unless excused for schooling, training or other acceptable
reasons.” On June 15, 2020, Baldwin’s probation officer, Kip Jackson, petitioned
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the district court to revoke Baldwin’s term of supervised release on the basis that
Baldwin had failed to maintain full-time employment and had remained unemployed
for more than thirty days. On July 30, 2020, the district court held a revocation
hearing. The following factual recitation derives from Jackson’s testimony at the
hearing.
Shortly after Baldwin’s release from prison, Jackson met Baldwin at
Baldwin’s home. At their initial meeting, Jackson reminded Baldwin that
maintaining employment was a condition of Baldwin’s supervised release. Their
second in-home visit was in July 2019. At that time, Baldwin told Jackson that he
was attempting to re-establish social security benefits and that the Social Security
Administration would mail its determination as to Baldwin’s eligibility within thirty
to ninety days. Jackson told Baldwin that “it would be best for him to seek
employment.” Baldwin did not show Jackson any proof of employment for the
period from May 2019 to July 2019. On December 5, 2019, Jackson again went to
Baldwin’s home to visit him. During the visit, Jackson asked Baldwin about the
employment search, to which Baldwin replied that he had filed a number of job
applications to no avail. At that time, Jackson advised Baldwin to seek job assistance
with the OIC of South Florida for job assistance.
Beginning in March 2020, Jackson had follow-up conversations over the
phone to check on Baldwin. During one of those conversations, Baldwin said that
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he applied for a position with Goodwill but that Goodwill decided to go with other
candidates. Jackson noted that Baldwin did not meet the minimum qualifications
for that position because Baldwin did not have a high school diploma or a GED.
Jackson re-advised Baldwin to seek the help of two career assistance programs: OIC
and Transition. The day before the revocation hearing, Baldwin told Jackson that
he called both OIC and Transition, but Jackson was not aware of any other attempt
that Baldwin made to speak with those agencies.
Baldwin’s defense attorney then cross-examined Jackson. On cross-
examination, Jackson testified that he did not ask Baldwin to document employment
applications until March 2020, but Baldwin complied once Jackson made the
request.1 Jackson referred Baldwin to a program through Goodwill that teaches
people how to sew, but Baldwin was not eligible because he did not meet one of the
criteria: being deemed disabled by the Social Security Administration Office.
Jackson again testified that Baldwin started to provide documentation after Jackson
asked. Jackson added that the document shows Baldwin used an online application
program to apply to jobs with “BJ’s, with Lowe’s, with Goodwill, with UPS, with
warehouse companies and so forth.”
1
We note that, at different times during the revocation hearing, Jackson testified that he
first asked Baldwin to begin documenting his job search efforts in either December 2019 or March
2020.
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On redirect, Jackson clarified that Baldwin only provided the documentation
about employment applications a couple of days prior to the July 2020 hearing and
did not previously provide documentation even after the request in March 2020.
Other than applying to Goodwill, the recent efforts with OIC and Transitions, and
the recent documentation of applications, Jackson did not know whether Baldwin
undertook any additional efforts to find a job.
On cross-examination, however, Jackson testified that Baldwin never said that
he only wanted to collect disability benefits and not work. Jackson also testified that
while other defendants he supervised were able to find employment through
programs like OIC and Transitions, those other defendants, unlike Baldwin, had at
least a high school diploma or GED.
The district court then questioned Jackson about the timeline surrounding his
Baldwin’s efforts to find a job. Jackson testified that Baldwin did not indicate that
he made any efforts, between the pair’s initial meeting in May 2019 and their second
meeting in July 2019, to obtain a full-time job. As to the period between July 2019
to December 2019, Baldwin told Jackson that he applied for several jobs, but
Baldwin did not provide documentation or specify how many applications he filed.
On re-cross, defense counsel elicited testimony from Jackson to clarify the
testimony from the district court’s examination. Specifically, Jackson clarified that
he could not recall whether he explicitly asked whether Baldwin sought employment
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between May and July 2019. Jackson further testified that he did not make a
contemporaneous note in his report that Baldwin was not trying to find a job during
that period. Jackson also testified that after he requested that Baldwin begin
providing proof of his efforts, Baldwin complied.
After Jackson’s testimony, the prosecutor argued that, based on the testimony,
it was “clear that that violation has occurred,” although “there [was] a separate
question of the efforts that were made,” which could be dealt with separately.
Defense counsel, by contrast, emphasized Baldwin’s compliance with most of the
terms of supervised release, noting that “the probation officer[] indicated in court
that Mr. Baldwin never said, ‘look, I’m applying for disability, so I don’t want to
find a job,’” and that “[f]rom May of 2019, when there was the first meeting between
the probation officer and Mr. Baldwin, Mr. Baldwin had indicated that he would
make efforts to find employment.” Defense counsel further noted that “[w]hen the
probation officer first asked him to begin providing him with documentation, Mr.
Baldwin began taking screenshots of the applications that he was submitting.”
Baldwin also addressed the district court. Specifically, he stated:
[U]nfortunately, because I don’t have a GED or high school diploma, I
have been turned away by almost everybody that I applied to. So it is
not that I’m not searching or looking, and I -- it wasn’t like I just started
since the screenshots, but I just was never asked to actually record the
screenshots of my earlier applications.
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The district court then reviewed the evidence and made the following factual
findings about the alleged violation:
It is clear to me that, at least in the calendar year of 2019, Mr. Baldwin,
you made minimal efforts, if any, to try to obtain employment. First,
your probation officer indicated that you didn’t indicate to him that you
had made any efforts to obtain employment during that six-plus-month
time period in 2019. Upon questioning by your attorney, the probation
officer has sort of qualified those earlier responses by saying that, yes,
you told him, you told the probation officer you were trying to find a
job, but we don’t know where you applied, when you applied, how
frequently you applied. We don’t know anything. And from not
knowing anything, I reached the conclusion that you did not make
efforts to find employment in the calendar year of 2019. . . . You could
do lawn maintenance work. You could do custodial work. I don’t think
you need a high school diploma to engage in those activities.
As a result, the district court found that Baldwin “violated the requirements
of [his] supervised release by not making sufficient, if any, effort to seek to comply
with that requirement of supervision that [he] maintain employment.” After hearing
sentencing recommendations from both sides, the district court revoked Baldwin’s
term of supervised release and imposed a new 35-months term of supervised release.
As part of the new term of supervised release, the district court required Baldwin to
keep a daily log of his efforts to obtain employment and turn that log into his
probation officer on a weekly basis. On July 30, 2020, the district court entered
judgment. This timely appeal followed.
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II. STANDARD OF REVIEW
We review the revocation of supervised release for an abuse of discretion,
United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010), and we will not
overturn a district court’s factual findings unless they are clearly erroneous, United
States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). We review de novo legal
questions, which includes whether the burden of proof was improperly placed on the
defendant. See United States v. Anton, 546 F.3d 1355, 1358 (11th Cir. 2008).
A district court abuses its discretion when it “commits a clear error of
judgment,” “applies an incorrect legal standard, follows improper procedures in
making the determination, or makes findings of fact that are clearly erroneous.”
United States v. Harris, 989 F.3d 908, 911–12 (11th Cir. 2021) (quoting Cordoba v.
DIRECTV, LLC, 942 F.3d 1259, 1267 (11th Cir. 2019)). For a factual finding to be
clearly erroneous, the finding must leave us with “a definite and firm conviction that
a mistake has been committed.” United States v. Almedina, 686 F.3d 1312, 1315
(11th Cir. 2012) (quoting United States v. Rothenberg, 610 F.3d 621, 624 (11th Cir.
2010)). If the evidence allows for two reasonable views, then a district court’s
choice between the two cannot be clearly erroneous. Id. Thus, a district court’s
credibility determination must be accepted unless it “is so inconsistent or improbable
on its face that no reasonable factfinder could accept it.” United States v.
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Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2003) (quoting United States v. Eddy,
8 F.3d 577, 580 (7th Cir. 1993)).
III. ANALYSIS
On appeal, Baldwin argues that the district court erred in: (1) finding that he
violated the terms of supervised release without sufficient evidence; and (2)
improperly shifting the government’s burden by requiring Baldwin to show that he
did not willingly fail to maintain employment. We find both arguments without
merit and address each in turn.
A. Violation of Supervised Release
The district court may revoke a term of supervised release if it finds, by a
preponderance of the evidence, that the defendant violated a condition of his
supervised release. 18 U.S.C. 3583(e)(3); U.S.S.G. § 7B1.3(a)(2); see also United
States v. Trainor, 376 F.3d 1325, 1331 (11th Cir. 2004) (explaining that
preponderance of the evidence means that the existence of a fact is more probable
than not). Here, the district court did not abuse its discretion in finding by a
preponderance of the evidence that Baldwin violated the terms of his supervised
release. Jackson testified about Baldwin’s statements, which included that Baldwin
was not successful in his efforts to find a job. Thus, as the prosecutor noted at the
revocation hearing, there is little doubt that Baldwin failed to meet the related
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requirements of maintaining employment and not being unemployed for more than
thirty days.
Baldwin, however, argues that this does not end the inquiry. He points to the
United States Supreme Court’s decision in Bearden v. Georgia, 461 U.S. 660 (1983),
to contend that the district court should not have revoked his supervised release
without considering whether he made bona fide efforts to find a job. In Bearden, a
state trial court revoked a defendant’s probation because he could not pay a fine and
restitution as scheduled because he lost his job. Id. at 662–63. The defendant
challenged the decision as violating the Equal Protection Clause of the Fourteenth
Amendment. Id. The Supreme Court concluded that the state trial court erred in
“automatically revoking probation because petitioner could not pay his fine, without
determining that petitioner had not made sufficient bona fide efforts to pay or that
adequate alternative forms of punishment did not exist.” Id. at 662. However, the
Supreme Court explained that revocation is justified where a “probationer has
willfully refused to pay the fine or restitution when he has the means to pay . . . as a
sanction to enforce collection.” Id. at 668.
We have subsequently stated that in the federal context, “courts must consider
alternative forms of punishment before revoking probation because of the
defendant’s failure to pay restitution.” United States v. Johnson, 983 F.2d 216, 220–
21 (11th Cir. 1993). And, more broadly, we have said that even outside of the
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context of financial sanctions, a district court should also consider whether the
defendant made a good faith effort to comply with the conditions of supervised
release prior to revoking the term of supervised release. United States v. Holland,
874 F.2d 1470, 1473 (11th Cir. 1989). “However, the ultimate decision to revoke .
. . is entrusted to the sound discretion of the district court and should be disturbed
only upon a finding of abuse of that discretion.” Id.
Baldwin argues that “the government presented no evidence to demonstrate
that [he] did not make a good faith effort to find employment.” However, an
examination of the record reveals that the district court considered Baldwin’s alleged
efforts to find employment in 2019 and found them “minimal.” The district court
made that finding after Jackson’s testimony that: (1) Baldwin told Jackson that he
was applying for disability benefits in response to a question about how Baldwin’s
job search was coming along; (2) Baldwin’s lack of specificity when Jackson asked
about the job search; and (3) others Jackson supervised that were more successful in
finding jobs.
Here, the circumstantial evidence that Baldwin did not make good faith efforts
to find a job was sufficient such that the district court did not clearly err in its factual
findings. We therefore reject this argument.
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B. Burden of Proof
Baldwin also contends that the district court erroneously shifted the burden of
proof such that he had to demonstrate his good faith efforts rather than requiring the
government to show that Baldwin lacked good faith in his job search. Specifically,
Baldwin contends that the district court’s revocation was due to Baldwin’s failure to
provide sufficient evidence concerning his efforts to find a job. We disagree with
this characterization of the record.
As an initial matter, while this Court has not specifically opined on whether
the government has the burden of proof in a supervised release context, we have
stated that the government has the burden of proof in a probation violation revocation
hearing, which is the functional equivalent. See id. at 1472 (explaining the that the
government has the burden of proof in a probation hearing); United States v. Frazier,
26 F.3d 110, 113 (11th Cir. 1994) (“[C]ourts treat revocations the same whether they
involve probation, parole, or supervised release.”).
The crux of Baldwin’s argument at the revocation hearing was that he never
explicitly told Jackson that he refused to look for a job and that he in fact told Jackson
he filed some number of applications, which shows a good faith effort to comply
with the terms of his supervised release. The job search was made all the more
difficult, Baldwin argues, because he lacks a high school education and has a history
of mental illness and disability. We find that the district court was free to reject
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these arguments in light of the contrary evidence. Specifically, the relevant
condition of supervised release provides that “the defendant shall provide
documentation including, but not limited to pay stubs, contractual agreements, W-2
Wage and Earnings Statements, and other documentation requested by the U.S.
Probation Officer.” Though Jackson’s request that Baldwin document his
employment applications did not come until December 2019, the district court did
not clearly err in finding that it strains credulity that Baldwin, over the course of
several months, filed a sufficient number of job applications to constitute a good
faith effort yet was not able to provide Jackson with corroborating evidence during
their meetings at Baldwin’s home. Accordingly, we reject this argument.
IV. CONCLUSION
We conclude that the district court did not erroneously shift the burden of
proof to Baldwin, that the district court’s factual finding that Baldwin did not make
a good faith effort to comply with the requirement to maintain a job was not clearly
erroneous, and that the district court did not abuse its discretion in revoking
Baldwin’s supervised release. Therefore, we affirm the judgment of revocation.
AFFIRMED.
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