United States v. Thoms ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4364
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMIE LYNN THOMS,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CR-02-53)
Submitted: September 23, 2005 Decided: October 12, 2005
Before TRAXLER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Paul J. Harris, Wheeling, West Virginia, for Appellant. Thomas E.
Johnston, United States Attorney, David J. Perri, Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jamie Lynn Thoms appeals her three-month sentence imposed
by the district court for violations of her supervised release. We
affirm. During her supervised release, Thoms pled guilty to
driving a vehicle under the influence of alcohol. Thoms claims
that the district court erred when it allowed the police officers
who arrested her to testify at her revocation hearing without
giving her prior notice of the testimony. This court reviews a
district court’s revocation of supervised release for abuse of
discretion. See United States v. Davis, 53 F.3d 638, 642-43 (4th
Cir. 1995).
The Government notified Thoms prior to the hearing that
it intended to prove her conduct was serious enough to revoke her
supervised release. Although the Government did not specifically
note the police officers’ testimony as its method of proof, it did
notify Thoms of the subject matter of the officers’ testimony.
Thoms had notice of the content of the officers’ testimony
regardless of whether she knew about that testimony prior to the
hearing. The district court did not abuse its discretion in
allowing the testimony of the police officers.
Thoms also claims that the decision in United States v.
Booker, 125 S. Ct. 738 (2005), affected her sentence. However,
because the sentencing guidelines relating to revocation of
supervised release have always been advisory, see U.S. Sentencing
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Guidelines Manual Ch. 7, Pt. A, the sentence imposed after the
revocation of her supervised release is not impacted by Booker.
Thoms claims that her current sentence is part of her original
sentence and that Booker should apply to her original sentence.
However, a defendant may not challenge, for the first time on
appeal from the revocation of supervised release, her sentence for
the underlying offense. See United States v. White, 416 F.3d 1313,
1316 (11th Cir. 2005). Booker does not apply to Thoms’ sentence
and the district court did not err in imposing its sentence.
Therefore, we affirm the judgment of the district court. 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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