United States v. Lee , 136 F. App'x 578 ( 2005 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5076
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
THELMIAH LEE, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Marvin J. Garbis, Senior District Judge.
(CR-00-477-MJG)
Submitted: May 25, 2005 Decided: June 28, 2005
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Peter R. Johnson, Assistant
Federal Public Defender, Sherri Keene, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Allen F. Loucks,
United States Attorney, Barbara S. Skalla, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Thelmiah Lee, Jr. appeals the district court’s judgment
revoking his supervised release and sentencing him to twenty-three
months in prison. We affirm.
We review a district court’s decision to revoke a
defendant’s supervised release for an abuse of discretion. United
States v. Pregent, 190 F.3d 279, 282 (4th Cir. 1999). The district
court need only find a violation of a condition of supervised
release by a preponderance of the evidence. 18 U.S.C.A.
§ 3583(e)(3) (West Supp. 2004). Our review of the record convinces
us that, in the instant appeal, the district court did not abuse
its discretion.
On appeal, Lee contends that the district court erred in
revoking his supervised release because one of the alleged
violations which the court considered in making its determination
-- his arrest and charge with driving without a license -- was not
a condition of his probation. A defendant on supervised release is
subject to the condition that he not “commit any federal, state or
local crime” during his term of supervision. See 18 U.S.C.
§ 3583(d) (2000). Lee asserts that the term “commit” requires an
actual conviction of a crime. The U.S. Sentencing Guidelines
Manual (“USSG”) § 7B1.1, cmt. (n.1) (2004), however, provides that:
Under 18 U.S.C. §§ 3563(a)(1) and 3583(d), a mandatory
condition of probation and supervised release is that the
defendant not commit another federal, state, or local
crime. A violation of this condition may be charged
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whether or not the defendant has been the subject of a
separate federal, state or local prosecution for such
conduct.
Thus, there is no express requirement that a conviction is required
to prove that Lee committed a state crime. See United States v.
Correa-Torres, 326 F.3d 18, 20 (1st Cir. 2003) (citing United
States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002); USSG
§ 7B1.1, cmt. (n.1)) (“So long as the government could prove that
the appellant committed the proscribed acts, the terms of his
release would be violated even in the absence of an actual
conviction.”).
Lee further contends that the district court erred in
revoking his supervised release, in part, on a violation for
submitting an untruthful probation report where the court’s finding
was based on an assumption, and not actual evidence of the
underlying facts. We find that the evidence was sufficient that
the district court could reasonably conclude, by a preponderance of
the evidence, that Lee submitted a false statement in his monthly
report to his probation officer. Moreover, the district court
found Lee’s violation of state law in connection with driving
without a license sufficient to establish a violation of the
conditions of Lee’s supervised release. Consequently, any arguable
error in connection with the finding that Lee submitted a false
monthly report was harmless because it did not affect the ultimate
sentence imposed or Lee’s substantial rights. See Fed. R. Crim. P.
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52(a); United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir.
2003) (finding that harmless error applied to supervised release
proceedings).
Finally, Lee asserts that the violation petition failed
to satisfy the requirements of due process as it provided him with
insufficient notice of the alleged violation. Because Lee failed
to raise this issue to the district court, or to show plain error
or a fundamental miscarriage of justice, we find he has waived the
issue on appeal. See United States v. Olano, 507 U.S. 725, 732-37
(1993); Fed. R. Crim. P. 52(b).
Accordingly, we affirm the district court’s judgment. 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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