United States v. King , 281 F. App'x 237 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GARRY R. KING, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:03-cr-00023)
Submitted: March 31, 2008 Decided: June 12, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael R. Cline, MICHAEL R. CLINE LAW OFFICE, Charleston, West
Virginia, for Appellant. Lisa Grimes Johnston, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
On January 29, 2003, Garry R. King, Jr., was charged with
one count of unlawfully possessing an article of mail stolen from
the mailbox of another and knowing that the article had been
stolen, in violation of 18 U.S.C. §§ 1708 (2000) and 2 (2000).
King eventually pled guilty to the sole count in the indictment and
was sentenced to three months’ imprisonment followed by three years
of supervised release.
King began supervised release on October 31, 2003. On
January 10, 2006, King’s probation officer petitioned the district
court for a warrant for King due to multiple alleged violations of
his supervised release. The district court ultimately entered an
order finding King had violated the conditions of his supervised
release and sentencing King to one day of imprisonment. The court
also imposed a period of thirty-six months less one day of
supervised release with the special condition that King spend five
months in the community confinement center at Bannum Place in Rand,
West Virginia. Thirty-one days later, King’s probation officer
again petitioned the court for a warrant for King due to an alleged
violation of his supervised release.
The district court held a hearing on October 17, 2006,
for King’s alleged violation, during which King, his probation
officer, and the director of Bannum Place testified. At the
conclusion of the hearing, the district court revoked King’s
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supervised release and sentenced him to ten months’ imprisonment
and twenty-four months’ supervised release.
King timely noted his appeal. On appeal, King has filed
a brief pursuant to Anders v. California, 386 U.S. 738 (1967).1
King now questions whether his conduct constituted a violation of
the special condition of his supervised release.
A decision to revoke a defendant’s supervised release is
reviewed for abuse of discretion. United States v. Davis, 53 F.3d
638, 642-43 (4th Cir. 1995). “Under the abuse of discretion
standard, this Court may not substitute its judgment for that of
the district court; rather, we must determine whether the district
court’s exercise of discretion . . . was arbitrary and capricious.”
United States v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995). The
district court need only find a violation by a preponderance of the
evidence to revoke a defendant’s supervised release. 18 U.S.C.A.
§ 3583(e)(3) (West 2000 and Supp. 2006).
In determining that King violated the special condition
of his release, the district court found that: (1) in the two and
one half weeks he resided at Bannum, King repeatedly requested
passes and furloughs from Bannum staff and, after being rebuffed,
from various probation officers; (2) that King went to the hospital
for a toothache and while there informed staff that he had a
1
King was informed of his right to file a pro se supplemental
brief. He has elected not to do so.
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behavioral problem; (3) that hospital staff did not believe King
was in dire need of immediate behavioral medical treatment; and (4)
that, upon returning to Bannum, King threatened suicide, expecting
to then be forced to leave. We have independently reviewed the
record and conclude that the district court did not err in finding
by a preponderance of the evidence that King falsely threatened
suicide for the purpose of inducing Bannum staff to force him to
leave Bannum and, thereby, violated the special condition of his
release.2
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the judgment of the district court. This court
requires that counsel inform King, in writing, of his right to
petition the Supreme Court of the United States for further review.
If King requests that 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 King.
2
Additionally, the district court did not err in requiring
King to spend five months at Bannum Place after sentencing him to
only one day of imprisonment for his original violations of
supervised release. See United States v. Allen, 2 F.3d 538 (4th
Cir. 1993).
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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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