USA v. Geoffrey Rodrigues

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10603
Non-Argument Calendar
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D.C. Docket No. 4:05-cr-10009-KMM-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
GEOFFREY RODRIGUES,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(September 10, 2012)
Before CARNES, PRYOR, and FAY, Circuit Judges.
PER CURIAM:
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Geoffrey Rodrigues appeals the district court’s revocation of his supervised
release, contending that the evidence was insufficient to establish that he
committed grand theft.
I.
Rodrigues pleaded guilty to conspiracy to bring aliens into the United States
in violation of 8 U.S.C. § 1324 and 18 U.S.C. § 371. The district court sentenced
him to 12 months and 1 day in prison and imposed a 3-year term of supervised
release. One of the conditions of Rodrigues’ supervised release prohibited him
from committing another federal, state, or local crime.
While Rodrigues was on supervised release, the probation office determined
that he had violated that condition, and the probation office filed a superseding
petition for the revocation of his supervised release. The petition alleged that
Rodrigues had violated the terms of his supervised release by committing five
Florida crimes: (1) grand theft, (2) conspiracy to traffic in cannabis, (3) cannabis
trafficking, (4) theft of utility services, and (5) possession of drug paraphernalia.
The district court issued a warrant and held a revocation hearing. At the
revocation hearing, the parties and the district court agreed that the government
was pursuing revocation based only on the grand theft allegation because, by the
time Rodrigues had committed the other four crimes, his supervised release had
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expired. The district court found that Rodrigues had violated the terms of his
supervised release by committing grand theft, and it revoked his supervised
release. The court sentenced Rodrigues to 5 months in prison and 31 months of
supervised release. This is Rodrigues’ appeal.
II.
A district court may revoke a defendant’s supervised release if it finds by a
preponderance of the evidence that the defendant violated a condition of that
release. 18 U.S.C. § 3583(e)(3). The preponderance of the evidence standard is
met if it is “more likely than not” that the defendant violated a condition of his
supervised release. See United States v. Cataldo, 171 F.3d 1316, 1322 (11th Cir.
1999). We review only for an abuse of discretion a district court’s revocation of
supervised release. United States v. Cunningham, 607 F.3d 1264, 1266 (11th Cir.
2010). That standard of review “recognizes the range of possible conclusions the
trial judge may reach.” United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir.
2004) (en banc). For that reason, we will affirm a district court’s revocation of a
defendant’s supervised release “unless we find that the district court has made a
clear error of judgment, or has applied the wrong legal standard.” Id.
A.
In Florida, one way to commit grand theft is by knowingly obtaining
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another person’s property, valued between $20,000 and $100,000, with intent to
deprive that person of a right to the property. See Fla. Stat. Ann. § 812.014(1),
(2)(b)(1). At the revocation hearing, Raja Abhulson testified that he leased a
building to Rodrigues that was outfitted with restaurant equipment worth at least
$100,000. The lease provided that no one could remove equipment from the
building without Abhulson’s consent. Abhulson testified that (1) he owned the
equipment; (2) the county required the owner of the equipment to pay a tangible
property tax on it; and (3) while Rodrigues was leasing the building, Abhulson
paid that tax. Abhulson also testified that he evicted Rodrigues from the building
and, soon after the eviction, someone removed all of the restaurant equipment
from the building. Police officers took Abhulson to Rodrigues’ home, and
Abhulson told the officers that some of his restaurant equipment was sitting in
Rodrigues’ yard. Also, a police officer testified that he executed a search warrant
for Rodrigues’ home and found some of Abhulson’s restaurant equipment. The
district court found Abhulson’s and the police officer’s testimony credible, and we
“give particular deference to credibility determinations of a fact-finder who had
the opportunity to see live testimony,” United States v. Lebowitz, 676 F.3d 1000,
1009 (11th Cir. 2012) (quotation marks omitted). The district court did not abuse
its discretion in finding that Rodrigues violated the terms of his supervised release.
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B.
There is another issue that we must address. The district court’s written
order states, “Upon motion by the Government, violations numbered 2, 3, and 4,
were dismissed. The hearing proceeded as to violation 1.” The written order does
not address the fifth alleged violation—possession of drug paraphernalia. The
transcript of the revocation hearing, however, clearly indicates that the court
dismissed the fifth alleged violation and that the omission of that dismissal from
the written order is a clerical error. So, although we affirm the court’s judgment in
all other respects, we remand the case to the district court for the limited purpose
of correcting the written judgment to reflect the court’s oral dismissal of the fifth
alleged violation. See United States v. James, 642 F.3d 1333, 1343 (11th Cir.
2011).
AFFIRMED IN PART AND REMANDED IN PART.
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