United States v. Taylor

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 99-4700
MICHAEL ANTHONY TAYLOR,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-97-22-T)
Submitted: November 28, 2000
Decided: February 6, 2001
Before WIDENER, LUTTIG, and WILLIAMS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Christopher C. Fialko, RUDOLF, MAHER, WIDENHOUSE &
FIALKO, Charlotte, North Carolina, for Appellant. Brian Lee Whis-
ler, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. TAYLOR
OPINION
PER CURIAM:
Michael Anthony Taylor appeals the district court’s imposition of
a two-year sentence of imprisonment upon revocation of probation.
Counsel has filed a brief in accordance with Anders v. California, 386
U.S. 738 (1967), raising claims that the district court erred in impos-
ing a sentence above the four to ten month range applicable under
Chapter 7 of the sentencing guidelines without notifying Taylor of its
intent to depart and that the district court erred in failing to sentence
Taylor within his original guidelines range of zero to six months’
imprisonment. Taylor was served a copy of the brief and was notified
of his right to file a supplemental brief, which he failed to do.
Under current law, if a defendant violates the conditions of proba-
tion, the court may continue probation or revoke it and "resentence
the defendant under subchapter A." See 18 U.S.C. § 3565(a)(2)
(1994). We have held that the current version of § 3565 "plainly per-
mits a district court to begin the sentencing process anew and to
impose any sentence appropriate under the provisions of subchapter
A, i.e., one that satisfies statutory and guideline requirements." United
States v. Schaefer, 120 F.3d 505, 507 (4th Cir. 1997). Taylor argues
that the court should have imposed a sentence within the original
guideline range of zero to six months. However, for probation revoca-
tion sentences imposed after the 1994 amendment to § 3565, a defen-
dant’s sentence need only comport with the statute under which he
was originally sentenced. That statute, 18 U.S.C. § 371 (1994) (con-
spiracy to commit bank fraud), provides a statutory maximum sen-
tence of five years’ imprisonment. Thus, Taylor’s two-year sentence
did not exceed the statutory maximum. United States v. Davis, 53
F.3d 638, 640-43 (4th Cir. 1995). Furthermore, a sentence above the
range set out in Chapter 7 is not a departure. Id. at 642 n.15. Conse-
quently, we find that the district court did not abuse its discretion in
imposing the sentence.
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
Taylor’s sentence. This court requires that counsel inform the client,
in writing, of his right to petition the Supreme Court of the United
UNITED STATES v. TAYLOR 3
States for further review. If a 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 represen-
tation. 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