United States v. Spencer ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4053
DARYL E. SPENCER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-90-117)
Submitted: July 23, 1996
Decided: August 2, 1996
Before WIDENER, NIEMEYER, and MICHAEL, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assis-
tant Federal Public Defender, Charleston, West Virginia, for Appel-
lant. Rebecca A. Betts, United States Attorney, John L. File, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Daryl Emmett Spencer appeals the revocation of his supervised
release term and imposition by the district court of the statutory maxi-
mum term of imprisonment pursuant to 18 U.S.C.A.§ 3583(e)(3)
(West Supp. 1996). Spencer's attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), concluding that there
are no meritorious grounds for appeal, but raising two issues: (1) that
the district court erred in revoking Spencer's supervised release term,
given that Spencer was willing to obtain inpatient drug treatment,
domestic violence counseling, and serve six months in community
confinement; and (2) that the district judge abused its discretion in
imposing the statutory maximum sentence. Spencer was notified of
his right to file an additional brief, which he failed to do.
In accordance with the requirements of Anders , we have examined
the entire record and find no meritorious issues for appeal. We find
that the district court properly revoked Spencer's term of supervised
release based on his admitted violations of the conditions of such
release, including twenty-seven separate instances of possession of a
controlled substance, and Spencer's failure to cease using narcotics
after previously receiving treatment, education, and counseling. See
18 U.S.C.A. § 3583(e)(3) (West Supp. 1996); United States v. Copley,
978 F.2d 829, 831 (4th Cir. 1992). Moreover, the court's revocation
decision was not unduly harsh given the absence of persuasive evi-
dence that Spencer would not continue to violate the conditions of his
release. Finally, we find that the statutory maximum sentence
imposed by the district judge was proper under the law, and that the
district judge's rejection, after consideration, of the more lenient sen-
tence suggested by the Chapter 7 United States Sentencing Guidelines
policy statements* does not constitute an abuse of discretion. See
United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995).
This Court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
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*See USSG § 7B1.4(a).
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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. Coun-
sel's motion must state that a copy thereof was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the Court and
argument would not aid the decisional process.
AFFIRMED
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