United States v. Brannon , 281 F. App'x 171 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN BRANNON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:95-cr-00370-HMH-46)
Submitted: May 20, 2008 Decided: June 11, 2008
Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Reginald I. Lloyd, Assistant United
States Attorney, Columbia, South Carolina, Leesa Washington, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Brannon appeals the sixty-month sentence imposed
upon revocation of his supervised release. His attorney has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for review, but
suggesting that the court may have abused its discretion in
revoking release and imposing sentence. Brannon has filed a pro se
supplemental brief raising additional issues. After a thorough
review of the record, we affirm.
There was testimony at the revocation hearing that a
confidential informant purchased crack cocaine from Brannon. The
transaction was captured on tape. The district court found beyond
a reasonable doubt that Brannon had violated a condition of
supervised release.
The decision to revoke a defendant’s supervised release is
reviewed for abuse of discretion. United States v. Pregent, 190
F.3d 279, 282 (4th Cir. 1999). To revoke release, the district
court must find, based on a preponderance of the evidence, that the
defendant committed the charged violation of a condition of
release. 18 U.S.C. § 3583(e)(3) (2000); United States v.
Armstrong, 187 F.3d 392, 394 (4th Cir. 1999). Here, although the
district court applied the more rigorous evidentiary standard,
application of this standard did not violate Brannon’s substantial
rights and was not reversible error. See United States v. Olano,
-2-
507 U.S. 725, 732 (1993). Further, contrary to Brannon’s assertion
on appeal, a defendant’s conviction on the criminal charge
underlying a petition to revoke supervised release is not a
prerequisite to revocation of release. See 18 U.S.C. § 3583(e)(3).
We will affirm a sentence imposed following revocation of
supervised release if it is within the applicable statutory range
and not plainly unreasonable. United States v. Crudup, 461 F.3d
433, 439-40 (4th Cir. 2006), cert. denied, 127 S. Ct. 1813 (2007).
Brannon’s sixty-month sentence equals the statutory maximum of five
years to which he was subject. See 18 U.S.C. § 3583(e)(3).
Further, in sentencing Brannon, the district court considered both
the advisory guideline range of fifty-one to sixty months, see U.S.
Sentencing Guidelines Manual §§ 7B1.4(a)(2), 7B1.4(b)(3)(A), p.s.
(1994), and the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007)
factors that the court was permitted to consider. See 18 U.S.C.
§ 3583(e); Crudup, 461 F.3d at 438, 440. Finally, the court stated
a proper basis for imposing sentence. See id. at 440. We conclude
that the sentence is not plainly unreasonable.
In accordance with Anders, we have reviewed the entire
record and have found no meritorious issues for appeal.
Accordingly, we affirm the judgment. This court requires counsel
to inform her 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
-3-
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 of the motion 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
-4-