NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0433n.06 No. 08-5610 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. ANTWAN WEBSTER, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON AP P E AL FROM THE UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE

BEF ORE: BATCHEL DER, Chief J udg e; SUHRHEI NRI CH and GRI FF I

N, Circuit J udg es. GRI FF I N, Circuit J udg e. Def endant Antwan Webster appea ls as proce durally unrea sonable the six ty -month sentenc e that he rec eived for violating the conditions of his supervised rele ase. He contends that, contra ry to the district court’s conclusion, the g overnme nt failed to es t ab l i s h a Gra de A violation by a preponde ranc e of the evidenc e and, there fore , the district court abused its discretion in rely ing upon clea rly err oneous finding s in imposi ng the sentenc e. We disag ree and af firm. I

. I n May 2002, Webster pled g uilty to one count of aiding and abetting an arme d bank robber y , in violation of 18 U.S.C. §§ 2 and 2113(a ), and one count of a iding a nd abetting in the car

rying of

a firea rm during a crime of violence, contra ry to 18 U.S.C. §§ 2 and 924(c) (1)( A)(i) , stemming from the robber

y of a Mississ ippi bank i n No v em b er 2001. On Aug ust 22, 2002, the district courtNo. 08-5610

USA v. W ebster

sentenc ed Webster to ninety -six months of imprisonment an d fi v e y ea rs of supervised rele ase. Webster’s supervised rele ase commence d on Fe bruar y 27 , 2007. Pursuant to an Aug ust 8, 2007, order , jurisdiction over his supervised rele ase was transfe rre d from the Norther n Di strict of Mississ ippi to the W estern D istrict of Tenne ssee. On November 12, 2007, the district court g rante d the United States Probation Offic e’s petition for an arr est war

rant for Webster, on the g rounds that he was not complying with the terms

o f h i s supervised rele ase. The petition alleg ed five violations. The first, a Gra de A violatio n , 1 alleg ed that Webster participated in new cr i m inal conduct by acting as the g etawa y driver in the robber y and murder of Kevin Valentine on May 21, 2007, in Memphis, Tenne ssee, resulting in his

arr est on char g es o f fi rs t-degree murder and ag g rava ted robber

y . The rema ining Gra de B and C 2 violations cited by the probation office included Webster’s failure to participate in substance abuse treatment a

nd testing; his unla

wful use or possession of a controlled substance; his f ailure to w ork regularly at a lawful occupation; and his association with a convicted felon without the permission of the probation office r. Webster was arr ested and detained pending a hear i n g o n t he alleg ed violations.

See generally U.S.S.G. § 7B1.1. “Where there is more than one violation of the conditions 1 of supervision

. . . the g rade of the violation is deter mined by the violation having the most ser ious g rade .” U.S.S.G. § 7B1.1( b). Webster was later rele ased afte r the char g es wer e dismiss ed for l ac k o f p rosec ution on 2 J uly 31, 2007. - 2 -No. 08-5610

USA v. W ebster

At the supervised rele ase violation hear ing held on May 5, 2008, Webster pled g uilty to the Gra de B and C violations and contested only the Gra de A violation – his alleg ed involvement in the robber y and murder of Valentine. Three teena g e boy s who witnessed Valentine’ s murder testified at the hear ing, and the g overnme nt introduced their written statements, taken short l y af t er t he homicide, i nto evidenc e. Their s t at em en t s and testimony wer e consistent. On M ay 21, 2007, the boy s wer e walking home from s chool wit h their friends on Over ton Crossing St ree t in Memphis. As they walked by a convenie nce store into an apar tment complex, the boy s interrupted an appar ent robber y . A man they rec og nized by the nickname “Hustle Man” was sitti ng on the g round betwee n two car s – one white and one black – an d an other man, whom they did not know, was standing

n ea rb y an d p ulled out a pistol. The boy s surprised the g unman, and Hustle Man took this opportunity to succe ssfully esca pe. As he fled, the g unman fired one shot at him. The g unman then turned and pointed his pistol at the boy s. He attempted to fire, but the pistol jammed. The g unman said “Come on Cuz ” and fled. As soon as he spoke, the boy s hear d another commotion and noticed two men fig hting on the se cond-f loor balcony

of the a partments. One of the men pulled out a g un and fatally

shot the other man, Kevin Valentine, known to the boy s as “Te ar D rop.” A ccor ding to the teens, the second g unman ran down the steps and fled in the same direc tion as the first g unman. Two of the teens made identifications from a photogr aphic lineup. The first boy identified Carlos Ba nks as the person who shot Valentine, the second boy identified Ba nks as the first g unman who had pointed the p i s t o l at t he children, and the third boy was unable to make an identification of any kind.

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USA v. W ebster

At the t ime of t he murder, a surveillance came ra at the ne ar b y co nvenienc e st ore capture d

a white For d Taurus backing into the parking lot, an Afric an-A merica n male exit ing the rea

r seat and walking out of vi ew, and shortly ther ea fter, two Afric an-A merica n males running across t he back side of the a

partment c omplex

. On J une 11, 2007, the investigating office r, Connie J ustice, was dispatched to the sc ene of

a domestic violence call wher e Shanika Washington, Carlos Ba nks’ g irlfriend, was providing information reg arding the death of Valentine. When J ustice arr ived, Carlos Ba nks was in one police

car and Webster was in another

. W as h i n gt o n t old J ustice that three people wer e involved in Valentine’ s murder – Ba

nks, Webster, and another individual named “Nick.” Washington pointed out a white For d Tau ru s t h at was parke d in the drivewa y . Acc ording to Washington, the Taurus, which belong ed to Webster, was used in the homicide. Washington also told J ustice that there was dark clothing inside the Taurus that had been used by the men in several robber ies. The Taurus matched the vehicle seen o n t h e store surveillance came ra at the time of Valentine’ s murder. Webster s igne d a consent to sear ch the Taurus. I nside the car, J ustice found a dark tee shirt, dark pants, a blue and black neopre ne mask, black skull caps, dark tennis shoes, and a box of latex g loves. Howeve r, the suspec ts on the surveillance video wer e not wea ringsimil ar c lothing. Washington g ave J ustice a written statement, which was admitted into evidenc e at Webster’s hear ing. Acc ording to the statement, Ba nks confe ssed to Washington that he, Webster, and a third p erson – “Nick” – planned on robbing a local drug deale r who lived in the Over ton C ro s s i n gs apar tment complex beca

u s e t h ey n ee ded money . When this person was not there , they decide d

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instead to rob Valentine, who also lived in the apar tments and dealt in marijuana , with cash on hand. Webst er drove his white For d Taurus with Ba nks and Nick to the apar tment complex. Webster parke d near the side of a convenie nce store, wher e there was a hole in the g ate separ ating the store from the apar

tments. Their alleg ed intent was to avoid the store’s surveillance came ras. Carlos and Nick exit ed the vehicle, we n t i n to the apar tment complex, and robbed and shot Valentine. Washington’s statement detailed the shooting: “Carlos told me that [Valentine] g ave up a strug g le and he was holding Nick, to try to keep him from strug g ling him [si c] and that’s when he shot him. Carlos said Nick shot him four times and Carlos only shot once, that was to scar e the teena g e boy s.” Washington stated that Webster was th e d ri v er o f t h e car used in the robber y and murder of Valentine: [W ebster] and Carlos both told the story telling that [Webster] was only the driver , beca use he didn’t know much about the apar tments. Yet Carlos knew the apar tment inside and out. [W ebster] said that he parke d in a g ood spot, but Nick messed up by g etting out of the wrong side of the car . [W ebster] thought that the store came ra only g ot the end of the car . Washington corr ectly identified Webster in a photogr aphic lineup. She also told J ustice that Carlos Ba nks’ sister, Shunta Allen, went with Ba nks to scout the apar

tment complex and purcha se marijuana befor e the robber y and homicide oc curr ed. Allen wa s also Webster’s g irlfriend. Ba sed

on this information, J ustice interviewe d Allen, who provided a written statement in which she stated that she was prese nt when the robber y was planned and confirme d that she had acc ompanied Ba nks when he scouted the apar tments for the robber

y . In her statement, Allen s aid t h at Ba n k s took her home after she purcha sed m arij u an a fr o m Valentine. Approxim ately fiftee n minutes later, Banks

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left with Webster and Nick. Nick and B anks eac h had a g un. The three men returne d a short time later, acting nervous and scar ed, and Nick had blood on the front of his shirt. Webster told Allen that he drove Ba

nks and Nick to the convenie nce store and wa ited while Ba nks and Nick went into the apar tment complex; when the two men ran back to the car a short t i m e l at er , Ni ck’s shirt was

cover ed with blood. Allen identified Webster and Ba nks as the suspects in a photogr aphic lineup. She was also able to corr ectly identify Valenti n e i n a photogr aph as the person from whom she boug ht marijuana. Washington beca

me an uncooper ative witness and failed to a ppear at numerous state court proce eding s rela

ted to the crimes. Consequently , the State of Tenne ssee’ s murder prosec ution was frustrated and ultimately terminated for lack of prosec ution. Washington was unwilling to meet with J ustice afte r the initial interview and, at Webster’s hear ing, essenti al l y rec anted her prior written statement, claiming that it wa s untrue. She testified that she was enra g ed afte r finding Ba nks with another woman and, a

war e that he had an outstandingwar rant, she c alled the police . Be cause she felt like “eve ry one was ag ainst [her],” she made her statement to t h e police implicating Ba nks, Webster, and Nick in the crime. Howeve r, she testified that she fabr icated her acc ount of the events in her statement and lied about Webster, Ba nks, and Nick being involved. Washington now claimed that she was in an apar

tment adjac ent to the murder scene when Valentine was fata lly shot and saw Valentine and an unidentified man fig hting over a g un. She did not see the actua l shooting, but hear d the shots. She opted, howeve r, not to call the police

.

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Shunta Allen also testified at Webster’s hear ing. Her tes t i m o n y concerning the pertinent events was larg ely consistent with her written statement. Allen testified that she saw Ba nks and Nick depar t toge ther in Webster’s car ; Webster was the driver. The men returne d a short time later with

nervous demea

nors. Nick returne d with a g un and had blood on his shirt. Although she saw Ba nks wi th a g un when he left, upon his return he did not have one. Allen acknow ledg ed identif y i n g Webster in a photogr ap hic lineup and telling the police that he drove the others to the apar tment wher e they shot Valentine. Howeve r, in her testimony , she denied that she hear d Ba nks and Webster planning the robber

y , and further denied that Webster made any statements to her about his role in the crime. I n this reg ard, she did not contend that her statement was untruthful, only that she did not

reme mber. Allen denied that she was the g etawa y driver. She testified that she missed her previous court appea

ranc es beca

use Webster told her not to show up. She added that she rec eived phone calls threatening to kidnap her if she testified in court. At the conclusion of the testimony , Webster addre ssed the district court and insisted that he did not play any role in the death of Valentine. Howeve r, the court conclude d that the g overnme nt had produce d “ample” and “over whelming ” evidenc e showing that Webster p articipated in the robber y and homicide and there fore violated the terms of his supervised rele ase. The district court found that Washington’s testimony was impeache d, and she would not be reg arde d as a truthful witness in court. Nonethele ss, the cou rt n o t ed t h at Washington “cle ar[ly ]

. . . had knowledg e of events” surrounding the crime. I n light of Allen’s reluc tant but “truthful” tes t imony conce rning Webster’s involvement in the murder, which was consistent with the evidenc e provided by the

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teena g ers and the s urveillanc e f i lm, the di strict court held that the gover nment fulfilled i ts burden of showing the Gra de A violation by a preponde ranc e of the evidenc e. The court sentenc ed Webster to the maxi mum statutory sentenc e of six ty months of imprisonment. Webster now timely appea ls 3 his sentence

. I I

. A district court has the power to “re voke a term of supervi s ed release, and require the defe ndant to serve [t ime] in prison

. . . if the court

. . . finds by a preponde ranc e of the evidenc e that the defe ndant violated a condition of supervised rele ase . . . .” 18 U.S.C. § 3583(e) (3); United States v. C arr , 421 F.3d 425, 429 (6th Cir. 2005). We revie w t he dis trict court’s de cision “for abuse of 4 discretion, g iving fre sh revie w to its leg al conclusions, and clea r-e rror revie w to its fac t finding s[.] ” United States v. Kontrol , 554 F.3d 1089, 1091- 92 (6th Cir. 2009) (interna l citations omit ted). Webster does not challeng e the propriety of t h e d i s t ri ct court’s decision revoking his supervised rele ase g iven his a dmission that he committed the Gra de B and C violations. A district court need find only a single violation to revoke a defe ndant’s supervised rele ase. United States v. Cofield , 233 F.3d 405, 408 (6th Cir. 2000) (citing 18 U.S.C. § 3583(e) ); United States v. Menic hino ,

The Gra de B violation called for a sent en ce betwee n 21 and 27 months of incar cer ation, 3 while the Gra de C violations car ried a rec ommended Guidelines rang e of 8 to 14 months. U.S.S.G. § 7B1.4( a) ( 2009). The a dvisory Guidelines ra

ng e for the Gra de A violation was 51 to 63 months of imprisonment, id ., but wa s go v erne d by the statutory maxi mum term of imprisonment. See U.S.S.G. § 7B1.4(b)

. “The common defin i tion of the phrase ‘pre pondera nce of the evidenc e,’ as found in law 4 treatises and st anda rd j u ry instructions, is evidenc e that is of gre ater weig ht, on balanc e, than that offe red in opposition to it.” Benge v. Johnson , 474 F.3d 236, 248 ( 6th Cir. 2007). - 8 -No. 08-5610

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103 F. App’x 884, 887 (6th Cir. 2004) (unpublis hed). Howeve r, he contends that it was an abuse of discretion for the district court to use the Gra de A violation as the basis for his sentenc e beca use it wa s not e stablished by a pre pondera nce of the evidenc e. Webster thus arg ues that his 60- month sentenc e is proce durally unrea sonable beca use it is based upon clea

rly err oneous fac ts. We disag ree . “Sentenc es imposed for supervised rele ase violations are revie wed under the same abuse of discretion standard that we apply to sentenc es imposed following conviction.” Un i t ed S tates v. Pee bles , 624 F.3d 344, 347 (6th Cir. 2010) (citation and internal quotation marks omitted); see also United States v. Polihonki , 543 F.3d 318, 322 (6th Cir. 2008). “The sentence m ay b e overturne d only if it is proce durally or substantively unrea sonable.” Pee bles , 624 F.3d at 347. “A district court

nece ssarily abuses its sentenc ing discretion if it ‘commit[s ] [a] signific ant proce dural err or, such as failing to calc ulate (or improperly ca l cu lating) the Guidelines rang e, treating the Guidelines as mandatory , failing to consider the § 3553(a) fac tors, selec ting a sentenc e based on clea rly err oneous fac ts, or failing to adequa tely explain the chosen sentenc e – includi n g an ex planation for any deviation from th e Gu i d elines rang e.” United States v. Bolds , 511 F.3d 568, 579 (6th Cir. 2007) (quoting Gall v. United States , 552 U.S. 38, 51 (2007)). I t is settled that “the [di strict] court may consider evidenc e at a revoc ation hear ing that would be inadmissible in a criminal prosec ution[ ,]” including reliable hear say . United States v. Kirby , 418 F.3d 621, 628 (6th Cir. 2005). See also United States v. Keisel , 400 F. App’x 33, 39 (6th Cir. 2010) (unpublished) (“A revoc ation hear ing need not be as formal as trial proce eding s, and a trial court can consider any rele vant evidenc e, including hear say , which bear s upon the court’s inquiry into whether

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the def endant ha s violated the terms a nd conditions of his . . . supervised re lease [.] ”) ( citation and internal quotation marks o mitted). Moreove r, at a supervised rele ase hear ing, “the cre dibilit y of witnesses is in the province of the fac tfin d er and [we] will not ordinarily revie w the fac tfinder’ s deter mination of cre dibilit y .” Un i t ed S t a t es v. Copeland , 20 F.3d 412, 413 (11th Cir. 1994); cf. Brooks v. Tennessee , 626 F.3d 878, 900 (6th Cir. 2010) (“I n addre ssing sufficie ncy of the evidenc e questions, this Court has long rec og nized that we do not weig h the evidenc e, consider the cre dibilit y of witnesses or substitut e our judgme nt for that of the [fact-finde r].”) (citation and internal quotation marks omitted). “Where there are two permiss ible views of the evidenc e, the fac tfinder’ s choice betwee n them cannot be clea rly err oneous.” Brooks , 626 F.3d at 900 (citation and internal quotation marks omitted). H e r e , We b s te r c hara cter izes both Washington’s and Allen’s tes ti mo ny a s in c o n s is te nt, a s w e ll

as “mater ially false and unreliable .” Howeve r, we ag ree with the g overnme nt that, even discounting Washington’s rec anted statement, the rema ining evidenc e, when viewed in the light most favor able to the prosec ution, is sufficie nt to establish Webster’s particip at i on in Valentine’ s murder by a preponde ranc e of the evidenc e. Allen testified that she scout ed o u t t he location of the planned robber y with Ba nks and purcha sed marijuana from Valentine; that Webster, Ba nks, and Nick, arme d with pistols, left toge ther in Webster’s white For d Taurus; and that they returne d shortly there afte r, acting unusually nervous, and Ni ck had blood on his clothes. She identified Webster from a photogr aphic lineup as one of the suspects and further demonstrated her actua l knowledg e by identifying V alentine in a photo.

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The district court was in the best position to assess Allen’s cre dibilit y and found that she was “re luctantly truthful,” understanda bly so when judge d ag ainst the backdr op of the threats that wer e made ag ainst her, both anony mously and by Webster, reg arding her appea ranc e at the hear ing. We will not dis turb the cour

t’s cre dibilit y

deter minations. The rea sonable infere nce to be draw n from this evidenc e is that Webster drove Ba nks and Nick to and from the murder fully awa re of what they

wer e g oing to do. Allen’s testimony is supported by other independe nt evidenc e – the teena g ers’ identification of Ba nks at the scene , Washington’s written statement that closely para lleled Allen’s descr iption of events, and the surveillance video showing two Afric an-A merica n males scrambling to esca pe in a white Taurus. I n short, the rec ord contains ample evidenc e to support the district court’s finding that Webster participated in V alentine’ s murder. I t the ref ore was not pr ocedur ally

unrea sonable, or a

n abuse of discretion, for the district court to rely upon this finding when it sentenc ed Webster to the statutory maxi mum term of six ty

months of imprisonment for the Gra de A violation.

I I I

. The judg ment of the district cour t is therefor e af

firmed.

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