IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60091

Summary Calendar 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee 

v. 

KOREA MCKAY, also known as Wack, 

Defendant-Appellant 

Appeal from the United States District Court 

for the Northern District of Mississippi 

USDC No. 3:13-CR-102-1 

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges. 

PER CURIAM:*

Korea McKay has appealed the district court’s judgment revoking his 

supervised release and imposing a 24-month term of imprisonment and a 60-

month period of supervised release after he was charged in state court with 

aggravated assault and being a felon in possession of a weapon. 

McKay contends that there was insufficient evidence showing that he

violated the conditions of his supervised release. He asserts that the district 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 26, 2017

Lyle W. Cayce

Clerk

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No. 16-60091

2 

court erred in crediting the testimony of the Government’s witnesses, including 

the assault victim, Jeremy Talbert, and in discrediting the inconsistent 

testimony of a witness called by the defense. It is not our function to pass on 

the district court’s determination regarding Talbert’s credibility. See United 

States v. Alaniz-Alaniz, 38 F.3d 788, 791 (5th Cir. 1994). His testimony was 

not incredible as a matter of law. See id. The district court did not abuse its 

discretion in determining that McKay violated a condition of his supervised 

release. See United States v. Minnitt, 617 F.3d 327, 332 (5th Cir. 2010).

McKay contends also that the sentence was substantively unreasonable. 

He asserts that, in determining the sentence, the district court gave improper 

consideration to his prior criminal history, which included offenses that did not 

result in convictions. Our review of this contention is for plain error. See 

United States v. Warren, 720 F.3d 321, 326 (5th Cir. 2013). 

To prevail on plain error review, McKay must identify (1) a forfeited 

error (2) that is clear or obvious, rather than subject to reasonable dispute, and 

(3) that affects his substantial rights. See Puckett v. United States, 556 U.S. 

129, 135 (2009). If he satisfies the first three requirements, this court may, in 

its discretion, remedy the error if the error “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.” Id. (internal quotation 

marks and citation omitted). 

Once a district court finds by a preponderance of the evidence that the 

defendant has violated a condition of supervised release, the court “may impose 

any sentence that falls within the appropriate statutory maximum term of 

imprisonment allowed for the revocation sentence.” United States v. 

McKinney, 520 F.3d 425, 427 (5th Cir. 2008); see 18 U.S.C. § 3583(e)(3). McKay 

does not dispute that the sentence was within the statutory maximum. In 

determining a revocation sentence, the district court may consider the relevant 

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factors enumerated in 18 U.S.C. § 3553(a), including the non-binding policy 

statements found in Chapter Seven of the Sentencing Guidelines. United 

States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011). 

McKay’s complaint is that the district court erred in considering offenses 

that were not reduced to judgment and offenses of which he was acquitted in 

reviewing his criminal history. The district court relied on other permissible 

factors, such as protection of the public, and McKay makes no effort to show 

that the error violated his substantial rights or that it affected the fairness, 

integrity or public reputation of the judicial proceeding. See Puckett, 556 U.S. 

at 135. Thus, he has not shown reversible plain error. See id. The judgment

is AFFIRMED. 

 

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