United States v. Hubbard , 146 F. App'x 665 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4305
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TREMAYNE HUBBARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Malcolm J. Howard,
District Judge. (CR-95-41-H; CR-04-242-H)
Submitted: September 19, 2005 Decided: October 25, 2005
Before LUTTIG, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Jane E. Pearce, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Anne M.
Hayes, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Tremayne Hubbard appeals from the district court’s order
revoking his supervised release and sentencing him to thirty
months’ imprisonment. Hubbard’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), representing
that, in his view, there are no meritorious issues for appeal.
Hubbard has been notified of his right to file a pro se
supplemental brief but has not done so.
The district court found that Hubbard violated his
supervised release by, among other actions, possessing marijuana.
The only issue Hubbard raises on appeal is whether the district
court erred in imposing its sentence without waiting for resolution
of a pending state court case related to Hubbard’s marijuana
possession. We review the district court’s decision to revoke
supervised release for abuse of discretion. United States v.
Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). The district court
need only find a violation of a condition of supervised release by
a preponderance of the evidence. See 18 U.S.C.A. § 3583(e)(3); see
also United States v. Woodrup, 86 F.3d 359, 361 (4th Cir. 1996).
During the revocation hearing, the police officer who arrested
Hubbard testified about how Hubbard received a package containing
marijuana. The district court found by a preponderance of the
evidence that Hubbard violated his supervised release by possessing
marijuana. The district court did not abuse its discretion in
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imposing its sentence without waiting for the conclusion of the
state court action because it properly found Hubbard violated his
supervised release.
Hubbard also claims the district court acted unreasonably
by not taking into account the potential state court punishment.
When the sentence does not exceed the statutory maximum under §
3583(e)(3), we review the sentence only to determine whether it is
“plainly unreasonable.” See 18 U.S.C. § 3742(a)(4) (2000). The
district court sentenced Hubbard to the low end of the recommended
sentencing range for violating his supervised release and it was
not plainly unreasonable to sentence Hubbard before the resolution
of his state court case.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Hubbard’s sentence. This 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. 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.
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AFFIRMED
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