United States v. Tubbs , 36 F. App'x 70 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4808
WESLEY TUBBS,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert C. Chambers, District Judge.
(CR-00-94)
Submitted: April 16, 2002
Decided: May 31, 2002
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Brian J. Kornbrath,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Lisa A. Green,
Assistant United States Attorney, Huntington, West Virginia, for
Appellee.
2 UNITED STATES v. TUBBS
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Wesley Tubbs appeals from the district court’s order revoking his
probation and imposing a forty-one month sentence. Tubbs’s attorney
has filed a brief pursuant to Anders v. California, 386 U.S. 738, 744
(1967), addressing whether the district court abused its discretion in
revoking Tubbs’s probation and whether the district court erred by
failing to advise Tubbs of his right to counsel, but stating that, in
counsel’s view, there are no meritorious issues for appeal. Although
advised of his right to file a supplemental pro se brief, Tubbs has not
done so. We affirm.
Upon finding a probation violation, the district court may revoke
probation and resentence the defendant to any sentence within the
statutory maximum for the original offense. 18 U.S.C.A. § 3565(a)
(West 2000); United States v. Schaefer, 120 F.3d 505, 507 (4th Cir.
1997). The uncontroverted evidence presented at Tubbs’s revocation
hearings established that Tubbs violated at least four conditions of his
probation. Because the district court imposed a sentence within the
four-year maximum for Tubbs’s original offense, 21 U.S.C.A.
§ 843(d) (West 2000), we find no abuse of discretion.
Counsel also asserts that the district court "conceivably erred" in
failing to advise Tubbs of his right to counsel, in violation of Federal
Rule of Criminal Procedure 32.1(a)(2). Tubbs, however, was repre-
sented by court-appointed counsel at his revocation hearings and,
therefore, any error in failing to advise him in accordance with Rule
32.1(a)(2) was harmless.
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the district court’s
order revoking Tubbs’s probation and imposing a forty-one month
sentence. This court requires that counsel inform his client, in writing,
UNITED STATES v. TUBBS 3
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move 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 argu-
ment would not aid the decisional process.
AFFIRMED