UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4442

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

KEVIN AUSTIN KIRBY,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. James C. Fox, Senior

District Judge. (5:11-cr-00119-F-1)

Submitted: November 27, 2013 Decided: December 12, 2013

Before GREGORY, AGEE, and FLOYD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Peter Marshall Wood, LAW OFFICE OF PETER WOOD, Raleigh, North 

Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States 

Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Kevin Kirby appeals from the judgment revoking his 

sentence of probation based on six alleged violations and 

imposing a sixty-month term of imprisonment. On appeal, Kirby 

argues that the district court unlawfully shifted the burden of 

proof to him, requiring him to prove why his probation should 

not be revoked. Finding no error, we affirm the judgment.

Kirby contends that the court impermissibly shifted 

the burden of proof by not requiring proof from the Government 

on all violations except four, and when, after the Government 

presented evidence on violation four, the court asked “why 

shouldn’t he be found to have violated all [of] four?” The 

Government concedes that it bears the burden of proving that 

Kirby violated the conditions of his probation sentence, but 

contends that the district court’s isolated statement regarding 

violation four was merely an opportunity for Kirby to present 

further argument and did not reflect a decision to lay the 

burden of proof upon Kirby. The Government also contends that 

although it did not present evidence on violations other than 

numbers two, four, and six, Kirby eventually admitted to all 

violations except number four, and the court could find a 

violation without further evidence from the Government on all 

violations but number four. 
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“The burden of persuasion is on the Government” in a 

probation violation hearing. United States v. Nagelberg, 413 

F.2d 708, 709 (2d Cir. 1969). To revoke a defendant’s 

probation, the district court need only find a violation by a 

preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2012). 

The district court has broad discretion in its decision to 

revoke a defendant’s probation. United States v. Cates, 402 

F.2d 473, 474 (4th Cir. 1968). A judge’s discretionary order 

revoking probation does not require the level of proof 

sufficient to support a criminal conviction. United States v. 

Williams, 378 F.2d 665, 666 (4th Cir. 1967). Instead, the facts 

and evidence must “reasonably satisfy the judge that the conduct 

of the probationer has not been as good as required by the 

conditions of probation.” United States v. Ball, 358 F.2d 367, 

370 (4th Cir. 1966) (internal quotations and citation omitted). 

In this case, we conclude that the revocation did not amount to 

an abuse of the court’s broad discretion and the court did not 

shift the burden of proof to the Defendant. 

First, although Kirby argues that he contested 

violations two, four, and six, the transcript indicates that 

only violation four was contested. Therefore, the Government 

was not required to put on evidence to support the uncontested 

violations. Second, the court’s statement asking why Kirby 

should not be found guilty of violation four was only after the 
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Government put on evidence regarding the violation. When it 

became clear that Kirby was contesting violation four, the court 

turned to the Government to determine whether it would like to 

introduce evidence of the violation into the record. Further, 

the evidence was sufficient to determine that Kirby had 

participated in new criminal conduct as specified in the motion 

to revoke probation.

Accordingly, we affirm the judgment revoking the 

probation sentence and imposing a sixty-month term of 

imprisonment. 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