US v. Nathaniel Bailey

Filing 920091208

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4210 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NATHANIEL DEVON BAILEY, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:04-cr-00196-RJC-CH-1) Submitted: August 28, 2009 Decided: December 8, 2009 Before NIEMEYER, GREGORY, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Claire J. Rauscher, Executive Director, Ross H. Richardson, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Nathaniel Devon Bailey appeals the district court's judgment revoking his supervised release. Bailey's counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), appeal asserting but that there are no meritorious issues erred for in questioning whether the district court relying upon evidence seized on November 24, 2008, allegedly in violation committed of new the Fourth Amendment, to conclude was that Bailey of his criminal conduct. Bailey informed right to file a pro se supplemental brief, but he has not done so. Finding no reversible error, we affirm. We defendant's review a district release court's for an decision abuse of to revoke a supervised discretion, United States v. Pregent, 190 F.3d 279, 282 (4th Cir. 1999), and review for clear error factual determinations underlying the conclusion that a violation occurred. 557 F.3d 910, 914 (8th Cir. 2009). find a violation of a condition United States v. Miller, A district court need only of supervised release by a preponderance of the evidence. 18 U.S.C.A. 3583(e)(3) (West 2000 & Supp. 2009); Johnson v. United States, 529 U.S. 694, 700 (2000). Bailey's claim that evidence seized after the November 24 stop should have been excluded fails because the exclusionary rule does not apply in supervised 2 release revocation proceedings. See United States v. Armstrong, 187 F.3d 392, 393-95 (4th Cir. 1999). court did not abuse We therefore find that the district its discretion in concluding by a preponderance of the evidence that Bailey committed new criminal conduct. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. This court requires that counsel inform the client, in writing, of the right to petition the Supreme Court of the United States for further review. filed, but counsel If the client requests that a petition be believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must state that We dispense with oral a copy thereof was served on the client. argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3

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