US v. Eric Thomas Myer

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:16-cr-00223-1 Copies to all parties and the district court/agency. [1000125555]. Mailed to: Eric Myers #10552-084 FCI Gilmer, P.O. Box 6000, Glenville, WV 26351. [17-4044]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 17-4044

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC THOMAS MYERS,
Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia,
at Bluefield. David A. Faber, Senior District Judge. (1:16-cr-00223-1)

Submitted: June 30, 2017

Decided: July 26, 2017

Before WILKINSON, FLOYD, and HARRIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Charles T. Berry, Fairmont, West Virginia, for Appellant. Willard Clinton Carte,
OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Eric Thomas Myers appeals from the district court’s order revoking his supervised
release and sentencing Myers to five months’ imprisonment and an additional term of
supervised release, including 12 months to be served in a halfway house. Myers appeals.
Counsel for Myers has filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious grounds for appeal but raising the
following issues: (1) whether trial counsel was ineffective, (2) whether the judge and
probation officer displayed “unprofessional, biased and prejudiced” behavior, and (3)
whether requiring Myers to spend 12 months at a halfway house is plainly unreasonable.
Myers filed a supplemental pro se brief in which he also challenges the reasonableness of
this portion of his sentence and claims that the probation officer was “biased.”
“Claims of ineffective assistance of counsel may be raised on direct appeal only
where the record conclusively establishes ineffective assistance. . . . Otherwise, the
proper avenue for such claim is a 28 U.S.C. § 2255 [(2012)] motion filed with the district
court.” United States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). We find that
ineffectiveness does not conclusively appear on the face of the record. There is no
evidence in the transcript of any animus on the part of either the probation officer or the
district court judge to which counsel could have objected. Moreover, Myers readily
admitted the violations of the terms of his supervised release.
Both counsel and Myers, in his supplemental pro se brief, claim that the judge and
the probation officer were biased against Myers. According to Myers, the district court
judge had indicated that he was not inclined to impose a prison sentence until he had an
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off-the-record discussion with the probation officer.

Because this discussion is not

included in the record, and Myers’ allegation is merely conclusory, Myers fails to show
bias on the part of the judge or the probation officer. Moreover, the probation officer is
considered “a neutral, information-gathering agent of the court, not an agent of the
prosecution.” United States v. Johnson, 935 F.2d 47, 49-50 (4th Cir. 1991). Therefore,
the judge’s communication with the probation officer was not improper.
A sentence imposed after revocation of supervised release should be affirmed if it
is within the applicable statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). In determining whether a
sentence is “plainly unreasonable,” this court first assesses whether the sentence is
procedurally and substantively reasonable. Crudup, 461 F.3d at 438. Only if a sentence
is found procedurally or substantively unreasonable will this court “then decide whether
the sentence is plainly unreasonable.” Id. at 439. A supervised release revocation
sentence is procedurally reasonable if the district court considered the policy statements
contained in Chapter Seven of the Sentencing Guidelines and the 18 U.S.C. § 3553(a)
(2012) factors applicable to revocation sentences. Crudup, 461 F.3d at 439.
Here, the district court properly calculated Myers’ policy statement range and
noted the appropriate statutory maximum term. The court explained that “[i]n view of
the nature and significance of the original misconduct leading to this indictment and
conviction, and the violation conduct since his release from imprisonment, I think that we
can accommodate Mr. Myers’ need for some intensive treatment with a drug problem,

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but we need to do it within the framework of a revocation and, some significant
incarceration time.”
Myers argues that the portion of his sentence requiring a 12-month stay in a
halfway house is unreasonable. We review the “imposition of special conditions of
supervised release for abuse of discretion.” United States v. Faulls, 821 F.3d 502, 509
(4th Cir. 2016). “A judge has significant flexibility in formulating special conditions of
supervised release,” including the ability to impose a period of community confinement.
United States v. Marino, 833 F.3d 1, 10 (1st Cir. 2016) (internal quotation marks
omitted); see 18 U.S.C. § 3583(d) (2012) (granting district court authority to order as
condition of supervised release “any condition set forth as a discretionary condition of
probation in section 3563(b)”); 18 U.S.C. § 3563(b)(11) (2012) (providing that district
courts may require defendants to “reside at . . . a community corrections facility”).
Courts may order special conditions of supervised release to the extent those conditions
(1) are “reasonably related” to the offense and the defendant’s history, the need to deter
criminal conduct, the need to protect the public, and the need to provide the defendant
with treatment or care; (2) “involve[] no greater deprivation of liberty than is reasonably
necessary” to achieve those purposes; and (3) are “consistent with any pertinent policy
statements” in the Guidelines. 18 U.S.C. § 3583(d).
Applying this standard, we find that the district court did not abuse its discretion in
imposing the additional condition of supervised release.

The court took into

consideration Myers’ drug problem and the nature of the violations, and how soon he
committed those violations after beginning his term of supervised release. In light of
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these factors, the court noted that Myers “requires a more significant term of treatment
following his release of [sic] incarceration than the 28 days” at the residential treatment
facility requested by Myers’ counsel. 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 Myers, in
writing, of the right to petition the Supreme Court of the United States for further review.
If Myers requests that a petition be filed, but counsel 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 a copy thereof was served on Myers.
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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