UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 19-4476

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRIAN KEITH ROGERS,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at 

Charlotte. Frank D. Whitney, Chief District Judge. (3:10-cr-00235-FDW-DCK-1)

Submitted: April 16, 2020 Decided: April 20, 2020

Before GREGORY, Chief Judge, and WYNN and DIAZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Chiege Ojugo Kalu Okwara, Charlotte, North Carolina, for Appellant. R. Andrew Murray, 

United States Attorney, Amy E. Ray, Assistant United States Attorney, OFFICE OF THE 

UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

Brian Keith Rogers appeals the district court’s judgment revoking his previously 

imposed term of supervised release.*

 The lone issue on appeal is whether the district court 

abused its discretion in finding that Rogers committed the alleged Grade A violation. We 

affirm.

We evaluate a district court’s overall decision to revoke supervised release for an 

abuse of discretion and review for clear error the relevant factual findings underpinning 

that determination. United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015). A court 

may revoke supervised release if it “finds by a preponderance of the evidence that the 

defendant violated a condition of supervised release[.]” 18 U.S.C. § 3583(e)(3) (2018). 

Because the standard of proof is lower than that required for a criminal conviction, the 

district court may find that the defendant has violated a condition of his supervised release 

based on its own finding of new criminal conduct, even if the defendant is acquitted on 

criminal charges arising from the same conduct or if the charges against him are dropped. 

United States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991); see U.S. Sentencing 

Guidelines § 7B1.1, p.s., cmt. n.1 (2011).

We conclude the district court did not abuse its discretion when it determined that 

the Government established, by a preponderance of the evidence, that Rogers committed 

the challenged “new law” violation alleged in the Revocation Petition, to wit: possession 

 * The district court imposed a 24-month custodial term of imprisonment, which 

Rogers does not contest on appeal. 
3

with intent to distribute fentanyl. In reaching this conclusion, the district court credited the 

in-person testimony of the other individual involved in the intercepted drug transaction, 

who offered clear and unequivocal testimony establishing his intent to purchase fentanyl 

from Rogers. Credibility determinations made by the district court at revocation hearings 

rarely are reversed on appeal. Accord United States v. Cates, 613 F.3d 856, 858 (8th Cir. 

2010) (conducting clear error review of revocation decision and recognizing that “[w]itness 

credibility is quintessentially a judgment call and virtually unassailable on appeal” (internal 

quotation marks omitted)). Upon review of the transcript of the revocation hearing, we 

find no clear error in either the court’s rationale for crediting the adverse testimony or for 

rejecting Rogers’ contrary testimony. 

On this record, we conclude the district court did not abuse its discretion in 

determining that Rogers committed the alleged Grade A supervised release violation. 

Accordingly, we affirm the revocation judgment. We grant Rogers’ motion for leave to 

file a physical exhibit. We dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before this court and argument would 

not aid the decisional process.

AFFIRMED