United States v. Lamont Harris , 512 F. App'x 292 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4686
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LAMONT VAN HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Thomas E. Johnston,
District Judge. (2:01-cr-00261-7)
Submitted: February 26, 2013 Decided: February 28, 2013
Before MOTZ, WYNN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
L. Thompson Price, HOLROYD & YOST, Charleston, West Virginia,
for Appellant. Joshua Clarke Hanks, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lamont Van Harris appeals the district court’s
judgment revoking his supervised release and sentencing him to
twenty-four months’ imprisonment. Harris’s attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting that there are no meritorious grounds for appeal, but
questioning whether the district court erred in finding that the
petition to revoke supervised release was timely filed. In his
pro se supplemental brief, Harris contends that he did not
violate the conditions of supervised release based on criminal
activity. The Government did not file a brief. For the reasons
that follow, we affirm.
Harris filed a motion to dismiss the petition to
revoke supervised release as being filed outside the three-year
supervised release period. The total time that elapsed between
Harris’s initial release and the petition was three years, eight
months, and fifteen days. In order for the petition to be
timely, eight months and fifteen days of that period must be
excluded or tolled. We conclude that the district court did not
err in calculating and applying the fugitive tolling doctrine to
Harris’s circumstances and finding the petition timely filed.
See United States v. Buchanan, 638 F.3d 448, 461 (4th Cir.
2011).
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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) (2006);
United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).
Because the standard of proof for a supervised release violation
is less than that required for a criminal conviction, 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. United States v. Stephenson,
928 F.2d 728, 732 (6th Cir. 1991); see also United States v.
Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002) (violation of
terms of supervised release is determined based on defendant’s
conduct and may be found whether defendant was ever convicted of
any particular offense).
Harris argues in his pro se supplemental brief that he
is innocent of the conduct supporting the petition. However,
because the court was permitted to rely upon the federal
conviction for felon in possession of a firearm, we conclude
that the violations were supported by a preponderance of the
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evidence and Harris’s supervised release was properly revoked.
See Copley, 978 F.2d at 831; Jolibois, 294 F.3d at 1114.
Although Harris does not assign any error to or
otherwise challenge the twenty-four-month sentence he received,
because this case is before us pursuant to Anders, we have
reviewed the sentence and conclude that it is procedurally and
substantively reasonable. The sentence is not plainly
unreasonable. Accordingly, we affirm Harris’s sentence. United
States v. Crudup, 461 F.3d 433, 438–40 (4th Cir. 2006).
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 Harris, in writing, of
his right to petition the Supreme Court of the United States for
further review. If Harris requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court at that time for leave to
withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Harris. 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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