United States v. Peery ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4267
THOMAS DALE PEERY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-98-65, CR-93-164)
Submitted: November 14, 2000
Decided: December 1, 2000
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis Dene, DENE & DENE, P.C., Abingdon, Virginia, for Appel-
lant. Robert P. Crouch, Jr., United States Attorney, Rick A. Mount-
castle, Assistant United States Attorney, Abingdon, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PEERY
OPINION
PER CURIAM:
The district court revoked Thomas Dale Peery’s term of supervised
release and sentenced him to serve thirty months in prison. Peery’s
attorney has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), in which no issues are raised.1 Peery filed a pro se
supplemental brief in which he alleges that: (1) although he was
arrested, he was not convicted at the time of revocation, and therefore
the court should not have revoked his term of supervised release; (2)
the district court improperly found that he was guilty of a Grade A
violation;2 and (3) counsel rendered ineffective assistance by failing
to raise the above issues. Finding no error, we affirm.
Peery was convicted in 1999 of mailing threatening letters, and he
was sentenced to eight months imprisonment (time served) and three
years of supervised release. In December 1999, Peery was arrested for
shoplifting, obstruction of justice, felony assault on a law enforce-
ment officer, and being drunk in public. Peery did not contest the
charges against him at the revocation hearing.
We find no error in the district court’s decision to revoke Peery’s
term of supervised release. There is no requirement that a defendant
be convicted of the offense resulting in revocation, only that the court
find by a preponderance of the evidence that the offense was commit-
ted. See 18 U.S.C. § 3583(e)(3) (1994). This requirement was satis-
fied when Peery declined to contest the charges. We likewise find no
error in the court’s finding that Peery committed a Grade A violation
under the sentencing guidelines. Felony assault on a law enforcement
officer is clearly a crime of violence punishable by more than one
year imprisonment. See USSG § 7B1.1(a)(1). Finally, because Peery’s
substantive claims fail, counsel was not ineffective by failing to argue
them.
We have examined the entire record in this case in accordance with
1
The case is simply submitted for appellate review.
2
See U.S. Sentencing Guidelines Manual § 7B1.1(a)(1) (1998).
UNITED STATES v. PEERY 3
the requirements of Anders and find no meritorious issues for appeal.
The court requires that counsel inform his client, in writing, of his
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. Coun-
sel’s motion must state that a copy thereof was served on the client.
We therefore affirm the district court’s order revoking Peery’s term
of supervised release and sentencing him to thirty months imprison-
ment. 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