United States v. Faulks , 195 F. App'x 196 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5168
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CELESTINE FAULKS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Rebecca Beach Smith, District
Judge. (CR-97-146)
Submitted: August 31, 2006 Decided: September 19, 2006
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Timothy V. Anderson, ANDERSON GOOD, Virginia Beach, Virginia, for
Appellant. Alan Mark Salsbury, Assistant United States Attorney,
Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Celestine Faulks appeals the district court’s order
revoking her supervised release and sentencing her to thirty-six
months’ imprisonment. Faulks’ attorney filed a brief pursuant to
Anders v. California, 386 U.S. 738, 744 (1967), stating that there
were no meritorious issues to raise on appeal, but arguing the
supervised release statute, 18 U.S.C. § 3583 (2000) is
unconstitutional under Booker,* and that it was improper for the
district court to conduct the supervised release revocation hearing
prior to Faulks being tried and convicted in state court. In her
pro se supplemental brief, Faulks further contends that the
Government presented insufficient evidence to support the district
court’s finding that she engaged in criminal conduct violative of
the terms of her supervised release. Because our review of the
record discloses no meritorious issues and no error by the district
court, we affirm the revocation order and the sentence imposed.
We reject Faulks’ constitutional claim as there is no
basis in law to support the argument that Booker invalidated the
supervised release statute, 18 U.S.C. § 3583 (2000), or rendered it
unconstitutional. See Booker, 543 U.S. at 258 (enumerating those
portions of the Sentencing Reform Act that were still valid,
including the supervised release statute); United States v.
Huerta-Pimental, 445 F.3d 1220, 1224 (9th Cir. 2006) (holding that
*
United States v. Booker, 543 U.S. 220 (2005).
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“[b]ecause the revocation of supervised release and the subsequent
imposition of additional imprisonment is, and always has been,
fully discretionary, it is constitutional under Booker”).
We also reject Faulks’ assertion that the district court
erred in conducting the violation hearing before Faulks was tried
in state court. As the district court noted, the supervised
release violation hearing was completely separate and distinct from
any state court proceeding that may arise, and the court’s findings
had no impact or res judicata effect thereon.
We further reject the contention that the Government’s
proof was insufficient to support the district court’s decision.
The Government presented the testimony of several women who
explained the fraudulent scheme masterminded by Faulks and her role
therein. The district court was well within bounds to reject
Faulks’ version of events — as well as her claim that another woman
was the true perpetrator of the fraud — as incredible.
Lastly, though Faulks does not expressly challenge the
duration of her sentence, we find the sentence was reasonable. As
we recently discussed in United States v. Crudup, ___ F.3d ___,
2006 WL 2243586 (4th Cir. 2006), we review sentences imposed upon
the revocation of supervised release to determine whether the
sentence is “plainly unreasonable.” Because Faulks’ sentence was
within the applicable statutory maximum, and neither procedurally
nor substantively unreasonable, we find it was not plainly
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unreasonable. In imposing this sentence, the district court
adequately considered the policies underlying the supervised
release statute, the various applicable sentencing factors, and the
available sentencing options.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. Accordingly, we
affirm the district court’s order revoking Faulks’ supervised
release and imposing a thirty-six-month sentence. This court
requires that counsel inform his client, in writing, of her right
to petition the Supreme Court of the United States for further
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. Counsel’s motion must state that a copy thereof
was served on the client. 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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