US v. Mark Patillo

Filing

UNPUBLISHED AUTHORED OPINION filed. Originating case number: 3:08-cr-00129-REP-1 Copies to all parties and the district court/agency. [999929901].. [16-4032]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4032

UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
MARK A. PATILLO,
Defendant − Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
Robert E. Payne, Senior
District Judge. (3:08−cr−00129−REP−1)

Submitted:

May 27, 2016

Before GREGORY,
Judges.

Chief

Decided:

Judge,

and

KEENAN

September 15, 2016

and

DIAZ,

Circuit

Affirmed by unpublished opinion. Judge Diaz wrote the opinion,
in which Chief Judge Gregory and Judge Keenen joined.

Geremy C. Kamens, Federal Public Defender, Alexandria, Virginia,
Robert J. Wagner, Assistant Federal Public Defender, Paul E.
Shelton, Research and Writing Attorney, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Richmond, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Alexandria, Virginia, S. David
Schiller, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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DIAZ, Circuit Judge:
Mark Patillo appeals the district court’s judgment revoking
his supervised release and sentencing him to twenty-four months
in prison, followed by a period of four years of supervised
release.

Patillo contends there was insufficient evidence to

find that he violated the terms of his supervised release by
committing

the

offense

of

felony

Virginia Code Section 46.2-817(B).

eluding

in

violation

of

For the reasons that follow,

we affirm.

I.
A.
A

federal

charging

grand

Patillo

jury

with

returned

possession

a

with

four-count

indictment

intent

distribute

to

heroin, in violation of 21 U.S.C. § 841; possession with intent
to

distribute

marijuana,

in

violation

of

21

U.S.C.

§ 841;

possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c); and possession of a
firearm

by

a

felon

and

user

of

controlled

violation of 18 U.S.C. § 922(g)(1), (3).

substances,

in

Patillo pled guilty to

possession with intent to distribute heroin and possession of a
firearm
district

in

furtherance

court

incarceration

on

of

sentenced
Count

One

a

drug

Patillo
and
2

a

trafficking
to

crime.

forty-one

consecutive

sixty

The
months’
months’

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incarceration on Count Three, to be followed by a five-year term
of supervised release.

On August 14, 2015, Patillo began his

ordered period of supervised release.
term

was

conditioned

on

The supervised release

Patillo’s

not

committing

another

federal, state, or local crime, or using a controlled substance.
On

November

Detective

John

18,

Flores

2015,
was

at

approximately

driving

an

unmarked

southbound on Ford Avenue in Richmond, Virginia.

10:00

p.m.,

Chevy

Impala

After Flores

crossed the intersection of Ford Avenue and Spotsylvania Street,
a Ford Explorer attempted to pass his vehicle on the right while
traveling

in

a

designated

parking

lane.

The

driver

of

the

Explorer, later identified as Patillo, braked to avoid hitting a
parked

car

and

abruptly

stopped

his

vehicle

fifteen

feet

in

front of Flores’s police cruiser.
Both vehicles came to a stop on Ford Avenue, just south of
the intersection where Spotsylvania meets Ford Avenue from the
west forming a dead end or T-intersection.

Approximately five

seconds later, Patillo shifted his vehicle into reverse and sped
down Ford Avenue.
turned

onto

When Patillo reached the intersection, he

Spotsylvania,

still

in

reverse,

and

continued

backing down the street for forty to fifty yards.
Detective Flores activated his police cruiser’s lights and
siren.

Without losing sight of Patillo, Flores pursued him by

similarly reversing his police cruiser down Ford Avenue, but
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instead of turning onto Spotsylvania as Patillo had done, Flores
drove slightly past the intersection.
By the time Flores turned right onto Spotsylvania, Patillo
was headed toward Ford Avenue at approximately thirty miles per
hour.

Patillo drove through the intersection, disregarding a

stop sign, and collided with an SUV parked in a driveway across
Ford Avenue.
struck

by

Flores believed that he was in danger of being
Patillo’s

intersection
vehicles

was

and

vehicle

noted

that

approximately

as
the

five

damaged Explorer and fled on foot.

it

traveled

distance
feet.

through

between

Patillo

the

the

two

exited

the

Flores eventually caught up

to Patillo in the backyard of a nearby residence and took him
into custody.
B.
Patillo’s probation officer filed a revocation petition,
alleging that Patillo violated the conditions of his supervised
release by using cocaine and committing the crimes of reckless
driving, failing to stop at the scene of an accident, and felony
eluding.

Before the district court, Patillo admitted guilt as

to the first, second, and third violations, but he challenged
the charge of felony eluding.

After hearing from witnesses, the

district court (1) determined that Patillo had committed all of
the

violations,

(2) revoked

Patillo’s

4

supervised

release,

and

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(3) sentenced him to twenty-four months’ incarceration followed
by four years of supervised release.

II.
Patillo appeals the district court’s judgment revoking his
supervised release for committing the offense of felony eluding
in violation of Virginia Code Section 46.2-817(B).
the

district

court

abused

its

discretion

in

He argues

evaluating

the

credibility of contrasting witness testimony and contends there
was insufficient evidence to prove an essential element of the
offense.
We

review

the

district

court’s

decision

supervised release for abuse of discretion.

to

revoke

United States v.

Padgett, 788 F.3d 370, 373 (4th Cir. 2015), cert. denied, 136 S.
Ct. 494 (2015).

To revoke supervised release, the sentencing

court

by

must

find

a

preponderance

of

the

evidence

that

a

defendant has violated a condition of supervised release. 18
U.S.C. § 3583(e)(3).
court’s

findings

We review for clear error the district

of

violation occurred.

fact

underlying

the

conclusion

Padgett, 788 F.3d at 373.

that

a

There is clear

error if the court, after reviewing the record, is left with
“the

definite

committed.”

and

firm

conviction

that

a

mistake

has

been

Anderson v. City of Bessemer City, 470 U.S. 564,

573 (1985) (quoting United States v. U.S. Gypsum Co., 333 U.S.
5

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364, 395 (1948)).

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However, “[i]f the district court’s account

of the evidence is plausible in light of the record viewed in
its

entirety,

the

court

of

appeals

may

not

reverse

it

even

though convinced that had it been sitting as the trier of fact,
it would have weighed the evidence differently.”

United States

v. Wooden, 693 F.3d 440, 451 (4th Cir. 2012) (quoting Anderson,
470 U.S. at 573-74).
A.
We first consider Patillo’s contention that the district
court

erred

in

crediting

the

testimony

of

Detective

Flores

regarding the distance Patillo drove in reverse on Spotsylvania.
The crux of Patillo’s argument is that if Flores was stopped on
Ford

Avenue

for

approximately

five

seconds

as

Patillo

began

driving down the street in reverse, he would have lost sight of
Patillo when

he

turned

onto

Spotsylvania

and

moved

behind

a

house located on the corner of the intersection.
According

to

Patillo,

the

district

court

should

have

credited the testimony of his cousin Donyell Patillo, who was
standing on Ford Avenue in a driveway across the street from
where Flores’s police cruiser stopped.

Donyell testified that

Patillo drove in reverse only a few feet down Spotsylvania, just
far enough to stop at the stop sign and align his vehicle with a
driveway

located

Additionally,

Donyell

directly

across

stated

that
6

once

the

intersection.

Patillo’s

vehicle

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stopped,

Flores

through

the

made

a

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U-turn

intersection,

and

on

Ford

made

Avenue,
a

turned

second

left

U-turn

on

Spotsylvania to reposition himself behind Patillo, who by then
had crossed the intersection and entered the driveway.

Thus,

according to Donyell, Patillo never ran through the stop sign or
came close to colliding with Flores’s police cruiser.
The

government

responds

that

credibility

determinations

made during a supervised release revocation proceeding are not
reviewable, a contention that finds support in the case law.

In

the context of revocation proceedings, our sister courts have
consistently held that witness credibility is quintessentially a
judgment for the trier of fact and thus virtually unreviewable
on appeal.

United States v. Cates, 613 F.3d 856, 858 (8th Cir.

2010) (holding witness credibility is virtually unassailable on
appeal);

United States v. Copeland, 20 F.3d 412, 413 (11th Cir.

1994) (per curiam) (finding credibility of a witness is in the
province of the district court and the appellate court will not
ordinarily

review

the

factfinder’s

determination);

United

States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996) (stating
“credibility determinations are within the unique role of the
factfinder and we are loath to upset . . . the district court’s
findings”
Lindsey,

(citation
242

F.

omitted));

App’x

65,

see

66

(4th

also
Cir.

United
2007)

States

(per

v.

curiam)

(holding that a district court’s “evaluation of the credibility
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of contrasting witness testimony . . . may not be disturbed” on
appeal).
Here,

however,

we

need

not

settle

on

the

appropriate

standard of review because, even reviewing for clear error, we
would

not

overturn

the

district

court’s

findings.

On

this

record, there was sufficient evidence for the court to find that
after stopping on Ford Avenue for approximately five seconds,
Flores quickly backed down the street without losing sight of
Patillo’s vehicle as it turned onto Spotsylvania and traveled in
reverse for forty to fifty yards.

Patillo’s challenge amounts

to an invitation (which we decline) for this court to reweigh
the evidence and substitute its own credibility determinations
for those made by the district court.
B.
We next consider whether the district court correctly found
that

Patillo

committed

the

offense

of

felony

violation of Virginia Code Section 46.2-817(B).
that

the

district

court

erred

because

his

eluding

in

Patillo argues
conduct

did

not

interfere with or endanger the operation of Flores’s vehicle or
endanger a person, including himself.

We do not agree.

Under Virginia law, a person is guilty of felony eluding
if, “having received a visible or audible signal from any lawenforcement officer to bring his motor vehicle to a stop, [he]
drives such motor vehicle in a willful and wanton disregard of
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such signal so as to interfere with or endanger the operation of
the law-enforcement vehicle or endanger a person.” Virginia Code
§ 46.2-817(B).

Explaining the “endangerment” element, Virginia

courts have reasoned that “a manifest purpose of the statute is
to protect the public against a driver eluding police ‘so as
to .

.

.

endanger

a

person.’”

Tucker

v.

Commonwealth,

564

S.E.2d 144, 146 (Va. Ct. App. 2002) (quoting Virginia Code §
46.2-817(B)).
endangerment
statute.”

Thus,
is

the

“conduct

evil

that

contemplated

raises
and

the

specter

proscribed

by

of
the

Gray v. Commonwealth, 651 S.E.2d 400, 403 (Va. Ct.

App. 2007) (quoting Tucker, 564 S.E.2d at 146).
The statute does not require an individual to be at the
scene and narrowly escape injury or death; it requires only that
the defendant’s conduct create the “specter of endangerment.”
Coleman v. Commonwealth, 660 S.E.2d 687, 690 (Va. Ct. App. 2008)
(quoting Tucker, 564 S.E.2d at 146) (finding that traveling at a
high rate of speed through an unoccupied cul-de-sac and hitting
a curb constituted endangerment).

The person endangered can be

the driver himself, the pursuing police officer, or anyone else
traveling on the road who is placed at risk as a result of the
defendant’s actions.

Phelps v. Commonwealth, 654 S.E.2d 926,

927 (Va. 2008).
Here, Patillo interfered with and endangered the operation
of Detective Flores’s vehicle.

Patillo entered the intersection
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at approximately thirty miles per hour, disregarded a stop sign
located

on

the

corner,

and

traveled

Detective Flores’s police cruiser.

within

five

feet

of

When Flores saw Patillo’s

vehicle coming toward him, he stopped on Spotsylvania, fearing
that he would be rammed.

Although Patillo contends that Flores

was not forced to “swerve, brake, or take any action to avoid a
collision,”

Appellant’s

endangered,

the

Br.

at

district

17,

court

and

was

therefore

was

unconvinced,

not

stating,

“[A]nybody who thinks he’s going to be rammed is going to remain
where he is to protect himself.”
We

hold

that

the

J.A. 87-88.

district

court

did

not

abuse

its

discretion in concluding that Patillo committed the offense of
felony

eluding,

interfered

with

in
the

that

Patillo’s

operation

of

conduct

Flores’s

endangered

vehicle.

and

We

also

agree with the district court that Patillo’s conduct posed a
significant risk to the safety of others, including himself.
driving

through

an

intersection

at

thirty

miles

per

By

hour,

without stopping at the stop sign, Patillo endangered anyone
traveling

on

the

road

that

pedestrians, and cyclists.
the

“specter

intersection

of

night,

other

drivers,

The district court aptly described

endangerment”:

without

including

stopping

“[Patillo]

thereby

flew

across

the

endangering

anybody

who

was coming down the street, any car who was coming down the

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street and himself.”

J.A. 88.

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And that Patillo struck a parked

SUV serves as further proof that he endangered himself.

Id.

Although Patillo accurately contends that Virginia courts
have

yet

to

constitutes

find

felony

that

running

eluding,

that

a

stop

is

sign,

not

without

more,

what

happened

here.

Instead, Patillo reversed down Ford Avenue at a high rate of
speed, made a reverse turn onto Spotsylvania, and traveled in
reverse for forty to fifty yards before driving back through the
intersection at thirty miles per hour.
Moreover, Patillo does not cite to a single case showing
that

his

conduct

endangerment.

is

insufficient

to

support

a

finding

of

Without such precedent he cannot show that the

district court abused its discretion.

III.
We affirm the district court’s judgment.
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

We dispense with
contentions
the

court

are
and

argument would not aid the decisional process.
AFFIRMED

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