US v. Earnest Rouse

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:08-cr-00947-MBS-5 Copies to all parties and the district court. [999610783]. [14-4943]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4943

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EARNEST ROUSE,
Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Aiken. Margaret B. Seymour, Senior District
Judge. (1:08-cr-00947-MBS-5)

Submitted:

June 25, 2015

Decided:

June 29, 2015

Before GREGORY, FLOYD, and THACKER, Circuit Judges.

Affirmed and remanded by unpublished per curiam opinion.

James P. Rogers, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Kelly Wilson Hall, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Earnest Kenneth Rouse appeals the district court’s judgment
revoking his supervised release and sentencing him to 24 months’
imprisonment.

Counsel has filed a brief pursuant to Anders v.

California,

386

U.S.

meritorious

grounds

738
for

(1967),
appeal

stating

but

that

questioning

there

are

whether

no
the

district court clearly erred by finding by a preponderance of the
evidence that Rouse violated his supervised release by committing
aggravated assault.

Rouse was informed of his right to file a pro

se supplemental brief, but he has not done so.

We affirm.

To revoke supervised release, a district court need only find
a violation of a condition of supervised release by a preponderance
of the evidence.

18 U.S.C. § 3583(e)(3) (2012); United States v.

Copley, 978 F.2d 829, 831 (4th Cir. 1992).

This standard is met

when the court “believe[s] that the existence of a fact is more
probable than its nonexistence.”

United States v. Manigan, 592

F.3d 621, 631 (4th Cir. 2010) (internal quotation marks omitted).
“[W]e review a district court’s factual findings underlying a
revocation for clear error.”

United States v. Padgett, ___ F.3d

___, ___, 2015 WL 3561289, at *1 (4th Cir. June 9, 2015).

There

is clear error if, after reviewing the record, we are “left with
the

definite

committed.”

and

firm

conviction

that

a

mistake

has

been

United States v. Span, ___ F.3d ___, ___, 2015 WL

2

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3541800, at *3 (4th Cir. June 8, 2015) (internal quotation marks
omitted).
We conclude that the district court did not clearly err by
finding by a preponderance of the evidence that Rouse committed
aggravated assault, as the three victims testified that Rouse
chased after them with a sword, threatening to kill them. Although
Rouse denied committing the assaults, we defer to the district
court’s decision to credit the victims’ testimony over Rouse’s.
See United States v. Cates, 613 F.3d 856, 858 (8th Cir. 2010)
(holding that credibility determinations made by district court at
revocation hearings are rarely reviewable on appeal).
In accordance with Anders, we have reviewed the entire record
in this case and have found no meritorious grounds for appeal.

We

note, however, that the “Nature of Violation” 12 was Rouse’s
failure to pay restitution, not his commission of new criminal
conduct, as stated on the revocation order.

Accordingly, although

we affirm the district court’s judgment, we remand for correction
of the clerical error.
This court requires that counsel inform Rouse, in writing, of
the right to petition the Supreme Court of the United States for
further review.

If Rouse requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then
counsel

may

move

representation.

in

this

court

for

leave

to

withdraw

from

Counsel’s motion must state that a copy thereof
3

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was served on Rouse.
facts

and

materials

legal
before

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We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED AND REMANDED

4