United States v. Hamilton , 360 F. App'x 424 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4195
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL HAMILTON, a/k/a James Jones, a/k/a Stacy,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Thomas David Schroeder,
District Judge. (1:94-cr-00066-TDS-1)
Submitted: December 16, 2009 Decided: January 8, 2010
Before MICHAEL and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, Terri-Lei O’Malley, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Hamilton appeals the district court’s judgment
revoking his term of supervised release and sentencing him to
forty-six months’ imprisonment and fourteen months’ supervised
release. His counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting she searched the
record and did not find any meritorious issues for appeal.
Counsel indicated she found the record did not support
Hamilton’s claims that he did not receive a preliminary hearing,
and if he did receive such a hearing, it was unreasonably
delayed and that he should have been allowed to proceed pro se
during the preliminary hearing. Hamilton filed a pro se
supplemental brief raising those claims. 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. Copley, 978 F.2d 829, 831 (4th
Cir. 1992). 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);
id. We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). While a district court
must consider the Chapter Seven policy statements, U.S.
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Sentencing Guidelines Manual, Ch. 7, Pt. B, and the statutory
requirements and factors applicable to revocation sentences
under 18 U.S.C. §§ 3553(a), 3583(e) (2006), the court ultimately
has broad discretion to revoke the previous sentence and impose
a term of imprisonment up to the statutory maximum. Crudup, 461
F.3d at 438-39.
Rule 32.1(a)(1) of the Federal Rules of Criminal
Procedure provides that when a person is “held in custody for
violating . . . supervised release,” that person must be taken
“without unnecessary delay” before a magistrate judge for an
initial appearance. Rule 32.1(b)(1)(A) provides, in relevant
part, that “[i]f a person is in custody for violating a
condition of . . . supervised release, a magistrate judge must
promptly conduct a hearing to determine whether there is
probable cause to believe that a violation occurred.” Further,
the revocation hearing must be conducted within a “reasonable
time” in the district court having jurisdiction. Fed. R. Crim.
P. 32.1(b)(2).
We find Hamilton’s claim that there was no preliminary
hearing to be without merit. Clearly, the hearing on September
23, 2008, was just such a hearing. Furthermore, insofar as
Hamilton claims there was an unreasonable delay until he
received the preliminary hearing, the claim is without merit
because Hamilton was not prejudiced by any such delay. See
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United States v. Santana, 526 F.3d 1257, 1260-61 (9th Cir.
2008). Hamilton fails to show that the delay somehow impaired
his ability to defend himself against the charge that he
violated the terms of supervised release. See United States v.
Chaklader, 987 F.2d 75, 77 (1st Cir. 1993).
We further find Hamilton did not have a Sixth
Amendment right to proceed pro se during the course of the
proceedings. See United States v. Hodges, 460 F.3d 646, 650-51
(5th Cir. 2006). The right to counsel at a preliminary hearing
or revocation hearing comes from Rule 32.1(b)(1)(B)(i) and
(b)(2)(D) (defendant has a right to retain counsel or request
that counsel be appointed). Hamilton cannot show he was
prejudiced because the court did not permit him to proceed pro
se during the preliminary hearing or the revocation hearing.
We find the district court did not clearly err in
determining Hamilton violated the terms of his supervised
release. We further find the forty-six month term of
imprisonment and the fourteen months’ supervised release was
reasonable as there were no procedural or substantive errors.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district
court. This court requires that counsel inform her client, in
writing, of his right to petition the Supreme Court of the
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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
that a copy thereof was served on the client. 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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