United States v. Byron Tate ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4265
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BYRON LEE TATE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:01-cr-00185-FDW-3)
Submitted: July 18, 2011 Decided: August 5, 2011
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Laura L. Ferris, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Byron Lee Tate appeals the district court’s judgment
revoking his supervised release, sentencing him to sixteen
months’ imprisonment and thirty-two months’ supervised release.
Tate challenges the factual basis upon which it was found that
he violated two conditions for supervised release, the resulting
sentence and the effectiveness of counsel. We affirm.
To revoke supervised release, a district court need
only find a violation of a condition of supervised release by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2006).
This burden “simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence.”
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(internal quotation marks omitted). A defendant challenging the
sufficiency of the evidence bears a heavy burden. United
States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997). In
determining whether the evidence in the record is sufficient,
this Court views the evidence in the light most favorable to the
government. United States v. Burgos, 94 F.3d 849, 862 (4th Cir.
1996) (en banc).
We have reviewed the record, particularly Tate’s
admissions to both violations and the relevant testimony, and
conclude that the district court did not err finding Tate
violated two conditions of supervised release.
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The district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). This
court will affirm unless the sentence is “plainly unreasonable”
in light of the applicable 18 U.S.C. § 3553(a) (2006) factors.
United States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). The
court’s first step is to “decide whether the sentence is
unreasonable.” Id., 461 F.3d at 438. In doing so, the Court
“follow[s] generally the procedural and substantive
considerations” employed in reviewing original sentences. Id.A sentence is procedurally reasonable if the court has
considered the policy statements contained in Chapter 7 of the
Guidelines and the applicable § 3553(a) factors, id. at 439, and
has adequately explained the sentence chosen, though it need not
explain the sentence in as much detail as when imposing the
original sentence. Thompson, 595 F.3d at 547. A sentence is
substantively reasonable if the district court states a proper
basis for its imposition of a sentence up to the statutory
maximum. Crudup, 461 F.3d at 440. If, after considering the
above, we determine the sentence is not unreasonable, we should
affirm. Id. at 439. We conclude there was no error regarding
the sentence and the district court did not abuse its
discretion.
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We will set aside Tate’s allegations concerning the
effectiveness of his counsel. Claims of ineffective assistance
of counsel are generally not cognizable on direct appeal.
Rather, to allow for adequate development of the record, a
defendant must bring his claim in a 28 U.S.C.A. § 2255 (West
Supp. 2011) motion. See United States v. King, 119 F.3d 290,
295 (4th Cir. 1997).
Accordingly, we affirm the judgment. We dispense with
oral 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
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