United States v. Jenkins ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4155
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ELIZABETH JENKINS, a/k/a Lady Bird,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:95-cr-00002-IMK)
Submitted: July 25, 2007 Decided: August 9, 2007
Before NIEMEYER and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West Virginia,
for Appellant. Sharon L. Potter, United States Attorney, Paul T.
Camilletti, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On November 3, 1995, Elizabeth Jenkins was sentenced to
seventy-seven months’ imprisonment and a three year term of
supervised release based on a guilty plea to a charge of conspiring
to possess with intent to distribute and distribution of controlled
substances. On April 26, 1999, Jenkins’ sentence was reduced to
sixty-three months’ imprisonment following a successful 28 U.S.C.
§ 2255 (2000) motion. This sentence was to run concurrently with
Jenkins’ state sentences. Jenkins completed her federal sentence
on May 31, 2000, but remained in state custody until approximately
June 25, 2005.
On October 3, 2006, the United States Probation Office
filed a petition for a warrant or summons for Jenkins, which
alleged that she failed to report to the probation office within
seventy-two hours of her release from state custody. Jenkins was
arrested that same month in Florida. Jenkins eventually bonded out
on November 9, 2006; however, a warrant for her arrest was issued
two days later for alleged failures to comply with the conditions
of her supervised release. Jenkins was eventually arrested on
December 23, 2006.
The probation office submitted an amended petition for a
warrant or summons for Jenkins on January 9, 2007. This amended
petition alleged four new violations in addition to the original
allegation of failing to report to probation. The petition alleged
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Jenkins possessed and used cocaine because she tested positive for
cocaine use when arrested in October 2006. The petition also
alleged Jenkins possessed and used cocaine in December 2006
because, when arrested on December 23, 2006, Jenkins admitted to
owning a crack pipe and to smoking crack the night before her
arrest.
Jenkins appeared for her revocation hearing on January
10, 2007 and admitted to the five alleged violations. The district
court found Jenkins in violation and imposed a six month sentence
and thirty months of supervised release. Jenkins timely noted her
appeal and has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), in which she raises two potential errors.* We
affirm the district court’s judgment.
On appeal, Jenkins first questions whether the three
years of supervised release from her original sentence expired on
May 31, 2003. Following her successful § 2255 motion, Jenkins’
sentence was reduced to sixty-three months and was to run
concurrent to any state sentence. Jenkins completed her federal
sentence on May 31, 2000. However, her three years of supervised
release did not then end on May 31, 2003 because Jenkins remained
in state custody until June 25, 2005 and 18 U.S.C. § 3624(e) (2000)
states, in pertinent part, that “a term of supervised release does
*
Jenkins was advised of her right to file a pro se
supplemental brief. She has elected not to do so.
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not run during any period in which the person is imprisoned in
connection with a conviction for a Federal, State or local crime.”
18 U.S.C. § 3624(e). Therefore, Jenkins’ three years of supervised
release did not begin until June 25, 2005.
Jenkins next questions whether the district court erred
in revoking her supervised release. A decision to revoke a
defendant’s supervised release is reviewed for abuse of discretion.
United States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). A
district court need only find a violation by a preponderance of the
evidence to revoke a defendant’s supervised release. 18 U.S.C.A.
§ 3583(e)(3) (West 2000 and Supp. 2006). Here, Jenkins, under
oath, admitted to each of the five alleged violations. Jenkins
attempts to excuse her failure to initially report based on her
attorney’s allegedly erroneous advice that she did not need to
report to federal probation. The district court did not err in
revoking Jenkins’ supervised release as, again, she admitted under
oath to each of the alleged violations.
Finally, Jenkins questions whether the district court
erred in imposing a six month sentence and thirty months of
supervised release. This court reviews a sentence imposed as a
result of a supervised release violation to determine whether the
sentence was plainly unreasonable. United States v. Crudup, 461
F.3d 433, 438 (4th Cir. 2006). The first step in this analysis is
whether the sentence was unreasonable. Id. 461 F.3d at 438. This
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court, in determining reasonableness, follows generally the
procedural and substantive considerations employed in reviewing
original sentences. Id. If a sentence imposed after a revocation
is not unreasonable, this court will not proceed to the second
prong of the analysis - whether the sentence was plainly
unreasonable. Id. at 439 (emphasis added).
Also, although a district court must consider the helpful
policy statements in Chapter Seven of the sentencing guidelines
along with the statutory requirements of 18 U.S.C. § 3583 (2000)
and 18 U.S.C. § 3553(a) (2000), the district court ultimately has
broad discretion to revoke its previous sentence and impose a term
of imprisonment up to the statutory maximum. Crudup, 461 F.3d at
439 (quoting United States v. Lewis, 424 F.3d 239, 244 (2d Cir.
2005)). Finally, on review, this court will assume a deferential
appellate posture concerning issues of fact and the exercise of
discretion. Id.Jenkins’ sentence was both procedurally and substantively
reasonable. Prior to imposing sentence, the district court
properly determined Jenkins’ advisory guidelines range. Jenkins’
most serious violation was a grade C offense, and combined with her
criminal history category of IV, resulted in an advisory guidelines
sentence of six months to two years. USSG § 7B1.4(a). The
district court also determined that Jenkins admitted to five
violations of the conditions of her supervised release, including
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failing to report to probation. Moreover, after being released on
bond, Jenkins refused to comply with the conditions of her release
and, again, disappeared from supervision. Accordingly, her six-
month sentence with an additional thirty months of supervised
release was both procedurally and substantively reasonable.
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 Jenkins, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Jenkins 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 Jenkins.
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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