US v. Michael Evers

Filing 920090313

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4862

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL W. EVERS, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Lacy H. Thornburg, District Judge. (1:07-cr-00044-LHT-DLH-1)

Submitted:

February 12, 2009

Decided:

March 13, 2009

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Dennis Gibson, LAW OFFICE OF DENNIS GIBSON, Asheville, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Charlotte, North Carolina; Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Michael W. Evers appeals from the district court's

judgment revoking his supervised release and imposing a sentence of six months' imprisonment. On appeal, counsel filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), asserting there are no meritorious grounds for appeal. Evers was notified

of his right to file a pro se supplemental brief, but did not do so. Finding no error, we affirm. We find that the district court did not abuse its

discretion in revoking Evers' supervised release.

See United

States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992) (providing standard violation of review). a The district of court need only find by a a

of

condition

supervised

release

preponderance of the evidence. 2000 & Supp. 2008).

18 U.S.C.A. § 3583(e)(3) (West

Based on Evers' admission of his violation

of the terms of supervised release, we conclude the district court's decision to revoke supervised release was not an abuse of discretion. A release statutory sentence be imposed if not after it revocation is within of the supervised applicable United We

will

affirmed and is

maximum

plainly

unreasonable.

States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006).

must initially determine the reasonableness of the revocation sentence by generally following the procedural and substantive 2

considerations employed in a review of original sentences, "with some necessary modifications to take into account the unique nature of supervised release revocation sentences." 39. Id. at 438-

If the revocation sentence is not unreasonable, it will be however, or if the sentence is in some must manner be a

affirmed;

procedurally

substantively

unreasonable,

there

determination of whether it is plainly so.

Id. at 439.

During the revocation hearing, the district court had available for its consideration the supervised release violation worksheet imprisonment which range noted the three-to-nine-month U.S. Sentencing advisory Guidelines

provided

under

Manual § 7B1.4(a) (2007). reference 18 U.S.C.

While the court did not specifically (2006) when announcing its

§ 3553(a)

sentence, see United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006) (stating district court need not explicitly address each § 3553(a) factor or refer to the statute); see also Rita v. United States, 551 U.S. 338 (2007), we find that the sentence imposed was within the advisory range and below the statutory maximum, and was not plainly unreasonable. at 439. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. court. Accordingly, we affirm the judgment of the district This court requires that counsel inform his client, in 3 See Crudup, 461 F.3d

writing,

of

his

right

to

petition

the

Supreme

Court

of

the

United States for further review.

If the client requests that a

petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move this court for leave to withdraw from representation. Counsel's motion must state We dispense with contentions the court are and

that a copy thereof was served on the client. oral argument because in the the facts and legal before

adequately

presented

materials

argument would not aid the decisional process. AFFIRMED

4