Case: 17-60757      Document: 00514526341         Page: 1    Date Filed: 06/25/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                       United States Court of Appeals

                                    No. 17-60757
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                        June 25, 2018
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk


                                                 Plaintiff-Appellee

v.

ELBIE HAROLD MOZINGO, JR.,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:14-CR-46-1


Before DAVIS, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Elbie Harold Mozingo, Jr., appeals the revocation of his supervised
release, arguing that the evidence was insufficient to establish that he engaged
in the sale of controlled substances by a preponderance of the evidence.
Although he concedes that some of the text messages on the cellular telephone
found at his house were suggestive of drug activity, he maintains that his
girlfriend was the primary user of the cell phone and that the Government did


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-60757     Document: 00514526341    Page: 2   Date Filed: 06/25/2018


                                 No. 17-60757

not prove that he was the person who sent the suggestive text messages.
Because Mozingo contested the alleged violations of his supervised release at
the revocation hearing, he preserved this issue for appeal. See United States
v. Neal, 578 F.3d 270, 272 (5th Cir. 2009).
      This court generally reviews a revocation of supervised release for abuse
of discretion. United States v. Spraglin, 418 F.3d 479, 480 (5th Cir. 2005).
Revocation is proper if the district court finds “by a preponderance of the
evidence that the defendant violated a condition of his release.”        Id.; see
18 U.S.C. § 3583(e)(3), (g)(1). The evidence and reasonable inferences from it
are reviewed in the light most favorable to the Government. United States v.
Alaniz-Alaniz, 38 F.3d 788, 792 (5th Cir. 1994). “The evidence is sufficient if a
reasonable trier of fact could reach the conclusion being challenged.” Id.
      Viewing the evidence in the light most favorable to the Government,
there was sufficient evidence to revoke Mozingo’s supervised release. The
evidence introduced at the revocation hearing established that Mozingo
violated his supervised release by participating in drug related text messages
concerning drug sales. A cellular telephone was found during a search of
Mozingo’s residence.    Mozingo told the probation officers that the phone
belonged to him and gave them permission to search it. Although some of the
drug related text messages were sent by Mozingo’s girlfriend, Gigi, there was
sufficient evidence to establish by a preponderance of the evidence that
Mozingo sent some of the drug related text messages. Therefore, the district
court did not abuse its discretion in finding that the Government established
by a preponderance of the evidence that Mozingo committed a Grade
A violation of his supervised release by participating in drug related text
messages concerning drug sales. See Spraglin, 418 F.3d at 480.
      AFFIRMED.



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