United States v. Bailey , 354 F. App'x 826 ( 2009 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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), asserting that there are no meritorious issues for
appeal but questioning whether the district court erred in
relying upon evidence seized on November 24, 2008, allegedly in
violation of the Fourth Amendment, to conclude that Bailey
committed new criminal conduct. Bailey was informed of his
right to file a pro se supplemental brief, but he has not done
so. Finding no reversible error, we affirm.
We review a district court’s decision to revoke a
defendant’s supervised release for an abuse of 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. United States v. Miller,
557 F.3d 910, 914 (8th Cir. 2009). A district court need only
find a violation of a condition 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 release revocation
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proceedings. See United States v. Armstrong, 187 F.3d 392,
393-95 (4th Cir. 1999). We therefore find that the district
court did not abuse 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. If the client 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 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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