United States v. Seeley , 233 F. App'x 323 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5182
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY WAYNE SEELEY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:98-cr-00068-6)
Submitted: May 25, 2007 Decided: July 11, 2007
Before WILLIAMS, Chief Judge, and WILKINSON and DUNCAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
Steven Slawinski, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Wayne Seeley was originally convicted and sentenced
to imprisonment and supervised release for conspiracy to possess
with intent to distribute cocaine and cocaine base and possession
with intent to distribute cocaine and cocaine base, in violation of
21 U.S.C. §§ 846 (2000) and 841(a)(1) (2000).
On October 24, 2006, a hearing was held to determine
whether Seeley violated the conditions of his supervised release.
Seeley admitted the first three alleged violations; however, he
denied the last two violations — whether he had broken state laws
by feloniously manufacturing and feloniously possessing marijuana.
The district court found by a preponderance of the evidence that
Seeley committed the five alleged violations and sentenced him to
thirty months’ imprisonment. Seeley timely noted his appeal and
filed a brief pursuant to Anders v. California, 386 U.S. 738(1967). On appeal, Seeley alleges that the evidence was
insufficient to establish by a preponderance of the evidence that
he violated the conditions of his supervised release by committing
the new state offenses. In letters to this Court, Seeley also
challenges the credibility of his wife in her initial statement to
the police and while on the witness stand.
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). The district court need only find a
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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, the district court did not abuse its discretion in
finding that Seeley committed the alleged state law violations.
The district court heard Mrs. Seeley’s initial statement to police
that she believed Seeley was growing marijuana in the backyard,
that she observed Seeley daily in the backyard, that Seeley
informed her he had planted something back there, and that she was
not to go out there. The court also heard that Seeley’s wife’s
daughter told police she believed Seeley was checking on something
in the backyard. Moreover, marijuana was located where Officer
Bloom had discovered, on a prior occasion, seedlings he believed
were marijuana. Accordingly, the Government established both
allegations Seeley complains of by a preponderance of the evidence,
and the district court, therefore, did not abuse its discretion in
revoking Seeley’s supervised release. Additionally, Seeley’s
attack on appeal on his wife’s credibility does not afford him any
relief. See United States v. Lomax, 293 F.3d 701, 705 (4th Cir.
2002).
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the judgment of the district court. This court
requires that counsel inform Seeley, in writing, of his right to
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petition the Supreme Court of the United States for further review.
If Seeley requests that a petition be filed, but counsel believes
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 Seeley.
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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