United States v. Flack ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4812
GENARDO LAMONTE FLACK,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., District Judge.
(CR-89-48-G)
Submitted: May 12, 1998
Decided: June 22, 1998
Before WILKINS and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen, III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Benjamin H.
White, Jr., Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Genardo Lamonte Flack appeals the district court's order revoking
his supervised release and imposing a twenty-four month term of
imprisonment. Flack contends that the district court erred in finding
that he violated the conditions of supervised release and erred in
imposing a sentence above the recommended guideline range. Flack
has moved to file a pro se supplemental brief, in which he alleges that
counsel was ineffective and that the district court erred in failing to
give notice of the court's intention to depart from the applicable
guideline range. Although we grant Flack's motion to file a pro se
brief, we affirm.
Flack began serving his five-year term of supervised release in
February 1994. After a hearing, the district court found that Flack had
violated the conditions of his supervised release by possessing
cocaine and marijuana, a Class B felony. The district court further
found that Flack had willfully falsified testimony about possessing the
narcotics at the revocation hearing. The applicable guideline range for
a Class B felony for a defendant with a criminal history category of
III is eight to fourteen months imprisonment. U.S. Sentencing Guide-
lines Manual § 7B1.4 (1995). The court noted that because Flack's
original term of imprisonment was a result of a downward departure,
an upward departure was permissible, and, in this case, appropriate.
At the revocation hearing, Flack's attorney agreed that the court had
authority to impose a sentence within the applicable guideline range
or upwardly depart. The district court revoked Flack's supervised
release and sentenced Flack to twenty-four months imprisonment.
This court reviews the district court's decision to revoke a defen-
dant's supervised release for an abuse of discretion. See United States
v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). The district court had
only to find a violation of a condition of Flack's supervised release
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by a preponderance of the evidence. See id.; 18 U.S.C. § 3583(e)(3)
(1994). Revocation of supervised release is mandatory if the defen-
dant unlawfully possesses a controlled substance. See 18 U.S.C.A.
§ 3583(d), (g) (West 1985 & Supp. 1998).
At the revocation hearing, Flack admitted that he pleaded guilty
and was convicted in state court of possession of cocaine. On appeal,
Flack contends that his conviction was based on an Alford* plea and
that he did not possess the cocaine he was convicted of possessing.
Flack concedes, however, that courts are permitted to revoke a term
of supervised release based upon a conviction, even when the validity
of the conviction is contested. Flack contends that the district court
failed to give adequate weight to his compelling testimony that he did
not possess the cocaine, despite his state court conviction.
We find that the district court's revocation of Flack's supervised
release was not an abuse of discretion. The statute provides that revo-
cation is mandatory upon conviction for possession of a controlled
substance, and the statute does not distinguish between a conviction
based on an Alford plea and any other type of conviction. See 18
U.S.C.A. § 3583(g). Further, the district court found that Flack's testi-
mony disputing his possession of the cocaine was not credible, and
such findings are unreviewable on appeal. See United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
Flack also contends that the district court erred in imposing a sen-
tence above the applicable guideline range. Flack asserts that the dis-
trict court erred in finding that he knowingly and willfully falsified
testimony at the revocation hearing. Flack conceded that, although the
sentence was above the recommended guideline range, it was well
within the statutory maximum.
Because Flack made no objection to a sentence outside the recom-
mended guideline range in the district court, we review for plain
error. See Fed. R. Crim. P. 52(b). A defendant is entitled to relief
under Rule 52(b) if there was an error, which was plain, which preju-
diced him in some way, and which "`seriously affect[s] the fairness,
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*North Carolina v. Alford, 400 U.S. 25 (1970).
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integrity, or public reputation of judicial proceedings.'" United States
v. Olano, 507 U.S. 725, 732-36 (1993) (quoting United States v.
Young, 470 U.S. 1, 15 (1985)). Chapter 7 policy statements "are now
and have always been non-binding, advisory guides to district courts
in supervised release revocation proceedings." United States v. Davis,
53 F.3d 638, 642 (4th Cir. 1995).
Because the supervised release revocation tables are policy state-
ments which are not binding on the court, the district court could con-
sider the range specified in the revocation tables, but was free to
impose a sentence up to the maximum allowed under the guideline
range determined at the initial sentencing. See United States v.
Denard, 24 F.3d 599, 601-02 (4th Cir. 1994). It is clear from the tran-
script that the court considered the range provided by the policy state-
ment but imposed a higher sentence based on Flack's perjury. We
conclude that the district court's imposition of a sentence in excess of
the recommended range was not error, plain or otherwise.
We grant Flack's motion to file a pro se supplemental brief. We
have considered the issues raised in that brief and find them to be
without merit. Flack's contention that counsel was ineffective is not
properly raised on direct appeal. See United States v. Ford, 88 F.3d
1350, 1363 (4th Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W.
3369 (U.S. Nov. 18, 1996) (No. 96-6379); United States v. DeFusco,
949 F.2d 114, 120-21 (4th Cir. 1991). Flack's contention that the dis-
trict court erred in failing to provide notice of its intention to depart
from the applicable guideline range is similarly without merit. See
Davis, 53 F.3d at 642 n.15 (finding that because imposition of a sen-
tence above the recommended guideline range is not a departure,
rules governing departure are inapplicable).
Accordingly, we affirm the sentence imposed by the district court.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the material before the court and
argument would not aid the decisional process.
AFFIRMED
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