United States v. Wellons , 155 F. App'x 728 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4619
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES STEWART WELLONS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Margaret B. Seymour, District
Judge. (CR-01-146)
Submitted: November 22, 2005 Decided: December 1, 2005
Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Jonathan S. Gasser, United States
Attorney, Columbia, South Carolina; Elizabeth Jean Howard, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Charles Stewart Wellons appeals from the district court’s
order revoking his supervised release and sentencing him to fifteen
months’ imprisonment after he admitted to violations of his
supervised release. Wellons’ attorney has filed a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), representing that, in
her view, there are no meritorious issues for appeal, but raising
the issue of whether the district court erred in imposing Wellons’
sentence. Wellons has filed a pro se supplemental brief, asserting
that counsel was ineffective with respect to this appeal and that
the court erred in determining the maximum sentence available in
this case. Finding no meritorious issues and no error by the
district court, we affirm the revocation order and the fifteen-
month sentence.
In light of Wellons’ admission that he committed the
violations of his supervision terms, we find no error by the
district court in revoking his supervised release. See 18 U.S.C.A.
§ 3583(e)(3) (West 2000 & Supp. 2005); United States v. Davis, 53
F.3d 638, 642-43 (4th Cir. 1995). Wellons challenges the length of
the sentence, which exceeds the three-to-nine month range suggested
by the Sentencing Guidelines. See U.S. Sentencing Guidelines
Manual § 7B1.4(a) (2000). However, the sentencing ranges in
Chapter 7 of the Sentencing Guidelines are not binding on the
sentencing court. Davis, 53 F.3d at 640-41. Rather, upon finding
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a violation, the district court may revoke supervised release and
resentence the defendant to any sentence within the statutory
maximum for the original offense. 18 U.S.C. § 3565(a) (2000);
United States v. Schaefer, 120 F.3d 505, 507 (4th Cir. 1997).
Because the district court imposed a sentence within the properly
determined statutory maximum, we find no abuse of discretion. See
USSG § 7B1.4, comment. (n.4).
Wellons also contends that counsel was ineffective with
respect to this appeal. A claim of ineffective assistance of
counsel must first be raised in the district court in a motion
under 28 U.S.C. § 2255 (2000), unless the record conclusively
establishes ineffective assistance. United States v. Richardson,
195 F.3d 192, 198 (4th Cir. 1999); United States v. King, 119 F.3d
290, 295 (4th Cir. 1997). Because the record does not conclusively
show that counsel was ineffective, we decline to address this claim
at this time.
In accordance with Anders, we have independently reviewed
the entire record and find no meritorious issues for appeal.
Accordingly, we affirm the district court’s order revoking Wellons’
supervised release and imposing a fifteen-month sentence. This
court requires that counsel 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 such a petition would be frivolous, then
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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.
AFFIRMED
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