United States v. Jeremy Tucker , 585 F. App'x 843 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEREMY VASHON TUCKER, a/k/a Nicholas Wilson,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Cameron McGowan Currie, Senior
District Judge. (7:08-cr-00666-CMC-1)
Submitted: November 20, 2014 Decided: November 24, 2014
Before KING and KEENAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Bradley M. Kirkland, BRADLEY M. KIRKLAND, LLC, Columbia, South
Carolina, for Appellant. David Calhoun Stephens, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeremy Vashon Tucker appeals the district court’s
judgment revoking his supervised release and sentencing him to
twenty-four months in prison, which was at the top of Tucker’s
advisory policy statement range. Tucker’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal, but
questioning whether the district court erred by revoking
Tucker’s supervised release based on criminal conduct for which
Tucker had not been convicted. Although advised of his right to
do so, Tucker has not filed a pro se supplemental brief. The
Government has declined to file a response brief. For the
reasons that follow, we affirm.
We review a district court’s judgment revoking
supervised release and imposing a term of imprisonment for abuse
of discretion. United States v. Pregent, 190 F.3d 279, 282 (4th
Cir. 1999). 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) (2012);
United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
The district court found that Tucker violated the
terms of his supervised release by committing another crime;
namely, assaulting a police officer and causing injury.
Specifically, on February 1, 2014, Tucker was arrested and
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charged with violating S.C. Code Ann. § 16-9-320(B) (2003). To
satisfy its burden of proof at the revocation proceeding, the
Government presented evidence that, while serving his supervised
release term, Tucker assaulted an officer of the Spartanburg
County Sheriff’s Office and injured him.
Tucker’s lone appellate contention is that the
district court should not have relied on this conduct to revoke
his supervised release because he had not yet been convicted in
state court. But whether Tucker is ultimately convicted of the
state assault charge simply is of no matter. The district court
may find that the defendant has violated a condition of his
supervised release based on its own finding of new criminal
conduct, even if the defendant is acquitted on criminal charges
arising from the same conduct or if the charges against him are
dropped. U.S. Sentencing Guidelines § 7B1.1, p.s., cmt. n.1
(2008); see United States v. Jolibois, 294 F.3d 1110, 1114 (9th
Cir. 2002) (“A violation of supervised release is determined on
the basis of the defendant’s conduct; it may be found whether
[defendant] was ever indicted or convicted of any particular
offense.”). Accordingly, we agree that a preponderance of the
evidence showed that Tucker had committed a crime while on
supervised release and find no abuse of discretion in the
district court’s decision to revoke Tucker’s supervised release.
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In accordance with Anders, we have reviewed the record
in this case and found no meritorious issues for appeal. We
therefore affirm the judgment revoking Tucker’s supervised
release and imposing a twenty-four-month term of imprisonment.
This court requires that counsel inform Tucker, in writing, of
the right to petition the Supreme Court of the United States for
further review. If Tucker 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 Tucker. 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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