United States v. Smith ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4645
LEROY JASON SMITH,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Dennis W. Shedd, District Judge.
(CR-91-314)
Submitted: July 8, 1997
Decided: September 5, 1997
Before MURNAGHAN, NIEMEYER, and HAMILTON,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
J. Brian Donnelly, Virginia Beach, Virginia, for Appellant. J. Rene
Josey, United States Attorney, Beth Drake, Assistant United States
Attorney, Columbia, South Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Leroy Smith appeals from the twelve-month sentence imposed by
the district court after revoking his term of supervised release and
from the denial of his motion to vacate judgment. We affirm.
Smith pled guilty in 1992 to one count of bank fraud, 18 U.S.C.
§ 1344(a)(2) (1994), and was sentenced to five months imprisonment
followed by three years of supervised release. The standard conditions
of supervised release included the requirement that Smith (1) submit
a "truthful and complete written report" to his probation officer each
month; (2) that he "answer truthfully all inquiries by the probation
officer and follow the instructions of the probation officer;" and (3)
notify the probation officer within 72 hours of any change in resi-
dence or employment. In addition, Smith's supervised release was
conditioned on payment of $120,000 in restitution, payable in
monthly installments equaling ten percent of Smith's gross monthly
income, pursuant to the Victims and Witness Protection Act, 18
U.S.C. §§ 1363-1364 (1994). The restitution payments were to be put
into an escrow account maintained by the district court for the benefit
of Community Federal Savings and Loan Association (the bank from
which Smith fraudulently withdrew the $120,000). Smith began his
term of supervised release on December 12, 1992. On December 8,
1995--eleven days prior to the expiration of his term of supervised
release--the United States Probation Office filed a petition in the dis-
trict court seeking revocation of his supervised release for violating
the terms therein. Specifically, the petition alleged that Smith had
failed to (1) submit truthful monthly supervision reports; (2) answer
truthfully all inquiries by the probation officer and to follow his
instructions; (3) notify his probation officer within 72 hours of a
change in employment; and (4) pay required restitution. After a hear-
ing at which Smith testified, the district court, on July 30, 1996,
revoked Smith's supervised release and sentenced him to twelve
months imprisonment. Smith appeals, claiming that the district court
lacked authority to impose restitution and, therefore, was without
jurisdiction to revoke his supervised release for failure to make the
payments.
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We review the district court's revocation of supervised release for
abuse of discretion. United States v. Stephenson , 928 F.2d 728, 731
(6th Cir. 1991); see also United States v. Copley, 978 F.2d 829, 831
(4th Cir. 1992) (applying the standard). Smith claims that the district
court was without authority to impose the restitution order in the
underlying judgment. Smith did not object to the restitution order at
sentencing or on direct appeal, nor did he file a Fed. R. Crim. P. 35
motion for correction of an illegal sentence or a motion under 28
U.S.C.A. § 2255 (West 1994 & Supp. 1997). An unappealed sentence
or a sentence upheld on appeal is presumed valid until vacated under
§ 2255, the exclusive remedy for challenging the validity of a sen-
tence. See United States v. Almand, 992 F.2d 316, 317 (11th Cir.
1993); United States v. Irvin, 820 F.2d 110, 111 (5th Cir. 1987) (a
probationer who never challenged the terms of the restitution provi-
sion either at the time of his sentencing or by way of direct appeal and
did not seek relief under Rule 35 or § 2255 was "foreclosed from
attacking the condition on his subsequent appeal from the order
revoking probation") (quoting United States v. Weber, 437 F.2d 1218,
1220 (7th Cir. 1971)). Accordingly, Smith has waived his claims
challenging the validity of the restitution order by his failure to raise
them prior to the revocation proceeding.
In any event, Smith's failure to pay restitution was one of three
independent grounds on which the district court relied in revoking his
supervised release. At the conclusion of the hearing, the district court
specifically found that Smith had violated two other conditions of
supervised release; namely (1) he failed to submit financial statements
as directed by his probation officer and the terms of his supervised
release and, (2) he failed to notify his probation officer of a change
of employment within 72 hours.
We find that the district court did not abuse its discretion in revok-
ing Smith's supervised release and, accordingly, affirm Smith's sen-
tence and the district court's denial of his motion to vacate judgment.
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 in the judicial process.
AFFIRMED
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