United States v. Whitlock , 195 F. App'x 162 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4164
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SARAH ARLENE WHITLOCK,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Margaret B. Seymour, District
Judge. (6:01-cr-00705-MBS)
Submitted: July 28, 2006 Decided: August 23, 2006
Before KING, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. David Calhoun Stephens, Assistant
United States Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Sarah Arlene Whitlock appeals a district court judgment
revoking her supervised release and sentencing her to thirteen
months’ imprisonment. On appeal, Whitlock’s attorney filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), claiming
there are no meritorious issues on appeal, but raising the question
of whether the district court consulted 18 U.S.C. § 3553(a) (2000)
before imposing sentence. Whitlock filed a brief claiming
ineffective assistance of counsel. She also claimed the prosecutor
misrepresented information in the presentence investigation report.
Finding no error, we affirm.
We review the district court’s decision to revoke a
defendant’s supervised release for an abuse of discretion. United
States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). 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 2000 & Supp. 2006). We find the court did not
abuse its discretion in revoking supervised release. Before United
States v. Booker, 543 U.S. 220 (2005), we reviewed a sentence
imposed upon revocation of supervised release for abuse of
discretion. United States v. Davis, 53 F.3d 638, 642-43 (4th Cir.
1995). This court has not yet decided whether, after Booker, the
proper standard is reasonableness. However, Whitlock’s revocation
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sentence was within the advisory Chapter 7 revocation range of 7-13
months and can be affirmed under either standard.
With respect to Whitlock’s issues, a claim of ineffective
assistance of counsel must first be raised in the district court in
a motion under 28 U.S.C. § 2255 (2000), unless the record
conclusively establishes ineffective assistance. United States v.
Richardson, 195 F.3d 192, 198 (4th Cir. 1999); United States v.
King, 119 F.3d 290, 295 (4th Cir. 1997). Because the record does
not conclusively show counsel was ineffective, we decline to
address this claim at this time. Whitlock failed to show error
with respect to the other claims.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Whitlock’s judgment. This court requires counsel to inform his
client, in writing, of her right to petition the Supreme Court of
the United States for further review. If the client requests a
petition be filed, but counsel believes such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on the client. We deny Whitlock’s motion
to expedite the appeal as moot. 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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