# United States Court of Appeals **For the Eighth Circuit**

___________________________ No. 12-3932

___________________________ United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.
Abraham M. Gomez

lllllllllllllllllllll Defendant - Appellant

____________ Appeal from United States District Court for the District of Nebraska - Lincoln

____________ Submitted: November 18, 2013 Filed: January 13, 2014 [UNPUBLISHED]

____________ Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.

____________ PER CURIAM.

The district court 1 revoked Abraham M. Gomez’s term of supervised release after finding that he had committed another crime. The district court then sentenced

1 The Honorable Richard G. Kopf, United St ates District Judge for the District of Nebraska.him to 42 months’ imprisonment, with no supervised release to follow. Gomez appeals from the judgment of revocation. We affirm.

In December 2006, Gomez pleaded guilty to one count of conspiracy to distribute and possess with intent to dist ribute a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846, and one count of possession of a firearm during a drug transaction, in violation of 18 U.S.C. § 924(c)(1). On the government’s motion, Gomez’s sentence was reduced to time served on February 12, 2009. He then began to serve his four-year term of supervised release.

In April 2012, Gomez’s probation officerpetitioned the district court for revocation of his supervised release. Th e petition alleged that Gomez had violated a condition of supervised release by “commit[ ting] another federa l, state, or local crime.” Specifically, the petition alleged that Gomez had sexually assaulted his girlfriend’s fifteen-year-old daughter during the summer of 2011. The district court held a hearing on the petition, during which it received testimony from the minor (M.L.), her mother, her stepmother, her grandmother, and Mary Paine, Ph.D.

M.L. lived with her mother and Gom ez during the summer of 2011 in Trumbull, Nebraska. One night in late June or early July, M.L. was lying on the couch in the living room watching television. She wa s wearing a nightgown and underwear. She fell asleep around midnight and was later awoken by Gomez knocking on the door. M.L. testified that Gomez was stumbling and seemed drunk. She let him into the home and returned to the couc h. M.L. testified that Go mez followed her to the couch and rubbed her vagina over he r underwear. According to M.L., she told him to stop and pushed him away when he refused to do so. Gomez then went to the bedroom he shared with M.L.’s mother. M.L. testifie d that she told her mother two weeks later and that her mother apologized, saying Gom ez only did it because he was intoxicated.

-2-M.L. returned to Montana in August 2011 to live at her father and stepmother’s home. Her father was depl oyed to Afghanistan, and M.L. did not get along with her stepmother. It soon became clear that M.L. could not live with her stepmother, and M.L.’s stepmother suggested that M.L. mi ght return to Nebraska. Eventually, M.L. went to live with her paternal grandmothe r, who sensed something was not right with M.L. M.L.’s grandmother asked her whether anyone had touched her inappropriately. M.L. responded in the affirmative and toldher grandmother about the incident with Gomez. Gomez was charged with third- degree sexual assault in Clay County, Nebraska. The charges were later dismissed.

M.L.’s mother testified that M.L. never told her about the incident. According to M.L.’s mother, she and Gomez spent every night together during the summer of 2011, there was never a night when Go mez came home after midnight, and she had not seen him intoxicated. After receiving a phone call from M.L.’s stepmother regarding the incident, M.L.’s mother to ld Gomez of the accusation but did not ask him if he had committed the act.

M.L.’s family testified that she was a withdrawn youth who sometimes cut herself. M.L. had been fire d from a job for threatening to stab a coworker, and M.L.’s stepmother worried th at M.L. might become violent. M.L. did not like staying with her mother in Nebraska because her mother was on welfare and lived in a trailer. Dr. Paine testified that delayed disclosure of sexual abuse is common among victims, and that given M.L.’s circumstances, her delaye d disclosures to her mother and then her grandmother were not surprising.

The district court credited M.L.’s te stimony and found that Gomez had sexually assaulted M.L. The districtcourt found M.L.’s mother’s testimony not credible. On appeal, Gomez argues that the district cour t failed to apply the preponderance-of-theevidence standard and relied instead on me re suspicion to find that Gomez had violated the conditions of his supervised release.

-3-“We review a district court’s decision to revoke supervised release for abuse of discretion and its factfinding as to whet her a violation occurred for clear error.” United States v. Perkins , 526 F.3d 1107, 1109 (8th Cir. 2008). “When reviewing for clear error, ‘we reverse only if we have a de finite and firm conviction that the district court was mistaken.’” United States v. Rhone , 647 F.3d 777, 779 (8th Cir. 2011) (quoting United States v. Farmer , 567 F.3d 343, 346 (8th Cir. 2009)). The government must prove by a preponderance of the evidence that the defendant violated a condition of supervised release. 18 U.S.C. § 3583(e)(3).

Gomez argues that “[t]he district court abused its discretion in finding the victim’s mother’s testimony incredible over the testimony of a troubled teen who obviously wanted to avoid being sent back to Nebraska to live on welfare in a trailer with her mother.” Appellant’s Br. 14. As evidence that M.L. was not credible, Gomez argues that M.L. had made incons istent allegations, delayed reporting the incident, and could not remember when th e assault occurred or how long she had known Gomez. Gomez, however, has not shown that the district court’s credibility findings were clearly erroneous. The distri ct court heard the witnesses’ testimony and asked detailed follow up questions of M.L. and her mother. It also considered Gomez’s argument that M.L. c oncocted the story to avoid re turning to Nebraska. The district court was in a position to assess the credibility of M.L. and her mother, and we find no reason to disturb its findings on appeal. United States v. Bunch , 707 F.3d 1004, 1006 (8th Cir. 2013) (“It is not our ro le to re-weigh evidence and substitute our own credibility assessments for those of the district court.”). 2

The judgment is affirmed.

_______________________________

2 Gomez argues that his due process rights were violated because “the district court used the fact of arrest as evidence. ” Appellant’s Br. 14. Although the district court was aware of the charge and its dismissal, there is no indication that the district court considered the fact of Gomez’s arre st as evidence that he had committed the crime.
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