UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4349


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

DEXTER N. SPEARS,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Charlotte. Frank D. Whitney, Chief District Judge. (3:06-cr-00162-FDW-1)


Submitted: October 31, 2017                                  Decided: November 2, 2017


Before WILKINSON, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Simon Massie, MASSIE LAW, PLLC, Charlotte, North Carolina, for Appellant. Jill
Westmoreland Rose, United States Attorney, Erik Lindahl, Special Assistant United
States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       In 2007, Dexter N. Spears pled guilty to possessing with intent to distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (2012), and possessing a

firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c) (2012). The district court sentenced him to 87 months’ imprisonment, to be

followed by a 3-year term of supervised release. The district court found that while

Spears was on supervised release, he violated the terms of his release by using cocaine

and committing other new criminal conduct. On appeal, Spears contends that the district

court clearly erred in crediting the victim’s testimony in finding that he committed new

criminal conduct. We affirm the district court’s judgment.

       To revoke supervised release, a district court need only find a violation of a

condition of release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2012).

“We review a district court’s ultimate decision to revoke a defendant’s supervised release

for abuse of discretion.” United States v. Padgett, 

, 373 (4th Cir. 2015). A

district court’s factual findings are reviewed for clear error. 

district

court’s finding that a witness is credible is “virtually unassailable on appeal.” United

States v. Cates, 

, 858 (8th Cir. 2010).

       [W]hen a trial judge’s finding is based on his decision to credit the
       testimony of one of two or more witnesses, each of whom has told a
       coherent and facially plausible story that is not contradicted by extrinsic
       evidence, that finding, if not internally inconsistent, can virtually never be
       clear error.

United States v. Hall, 

, 462 (4th Cir. 2012) (quoting Anderson v. Bessemer

City, 

, 575 (1985)).

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       Spears’ argument on appeal is that the victim’s testimony that he kicked in the

front door of her apartment and assaulted her was not supported by the photographs of

the damage to the door and her injuries. We disagree. The photographs of the door

clearly show some force was applied to break the locks. Additionally, a law enforcement

officer testified that he found a piece of the lock on the ground and that the door suffered

recent damage.

       The photographs of the victim’s injuries are also not inconsistent with her

testimony. While the victim did not suffer a visible injury to her neck, she did not testify

that Spears strangled her—only that he placed his hands around her neck. Additionally,

the photograph of the victim’s knees show that her right knee was swollen, consistent

with her description of a fall to her knees while disengaging from Spears’ attack. This

evidence does not call into question the district court’s decision to credit the victim’s

testimony over that of Spears and another witness.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the

materials before this court and argument would not aid the decisional process.



                                                                               AFFIRMED




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