[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 26, 2008
No. 07-12919 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-20248-CR-PCH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ABRAHAM DANIEL,
a.k.a. Daniel Abraham,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 26, 2008)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Abraham Daniel appeals his four-month sentence imposed for violating his
supervised release by failing to report to a probation office within 72 hours of his
release from the custody of the Bureau of Prisons. Although he admits that he did
not report to a probation office, Daniel argues that the district court erred by
finding that he violated the terms of his supervised release because: (1) during his
original sentence hearing, he was not informed that he was being placed on
supervised release; and (2) the government did not carry its burden of proof
because it failed to present any evidence that he was provided with notice of the
terms of his supervised release.
We review a district court’s revocation of supervised release only for an
abuse of discretion. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994).
Under 18 U.S.C. § 3583(e), the district court may “revoke a term of supervised
release, and require the defendant to serve in prison all or part of the term of
supervised release authorized by statute . . . if the court . . . finds by a
preponderance of the evidence that the defendant violated a condition of [his]
supervised release.” 18 U.S.C. § 3583(e)(3). The preponderance standard “does
not relieve the sentencing court of the duty of exercising the critical fact-finding
function that has always been inherent in the sentencing process . . . .
Preponderance of the evidence is not a high standard of proof. It is not, however, a
toothless standard either.” United States v. Askew, 193 F.3d 1181, 1183 (11th Cir.
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1999) (internal citations and quotations omitted).
When reviewing a probation revocation, which follows “essentially the
same” analysis as revocation proceedings relating to supervised release, see United
States v. Almand, 992 F.2d 316, 318 n.5 (11th Cir. 1993), “all that is required is
that the evidence reasonably satisfy the judge that the conduct of the probationer
has not been as good as required by the conditions of probation; evidence that
would establish guilt beyond a reasonable doubt is not required,” United States v.
Robinson, 893 F.2d 1244, 1245 (11th Cir. 1990) (internal citation omitted).
Importantly, “[a] district court’s findings of fact are binding on this court unless
clearly erroneous,” Almand, 992 F.2d at 318 (internal quotation omitted), and we
generally will not review its credibility determinations, United States v. Copeland,
20 F.3d 412, 413 (11th Cir. 1994).
The district court did not abuse its discretion in revoking Daniel’s
supervised release. At the revocation hearing, Daniel admitted that he did not go to
the probation office within 72 hours of his release from custody, but he testified
that he did not recall being told to report to a probation officer or that he was being
sentenced to supervised release. The district court was free to make an adverse
credibility determination about Daniel’s failure to recall being notified of the terms
of his supervised release. See id. Moreover, there was sufficient evidence
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presented at the hearing, based on the minutes from Daniel’s sentence hearing, the
district court’s own knowledge of the sentencing procedures it used, and the
testimony by probation officer Lori Morales that Daniel had signed a form
instructing him that he had 72 hours after his release to report to the nearest
probation office, to establish by a preponderance of the evidence that Daniel
willfully failed to report to a probation office within 72 hours of his release from
custody.
AFFIRMED.
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