United States v. Thomas

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4919
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MONROE KENNY THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. William B. Traxler, Jr.,
Circuit Judge, sitting by designation. (7:01-cr-00517-GRA-1)
Submitted: January 26, 2009 Decided: February 17, 2009
Before NIEMEYER, KING, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, 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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monroe Kenny Thomas pled guilty to one count of bank
fraud, in violation of 18 U.S.C. § 1344 (2000), and was
sentenced in December 2003 to time served and five years of
supervised release. In August 2008, the district court revoked
Thomas’ supervised release and sentenced him to eight months’
imprisonment. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
the district court abused its discretion in revoking Thomas’
supervised release and sentencing him to eight months’
imprisonment. Thomas was informed of his right to file a pro se
supplemental brief, but he has not done so. Finding no error,
we affirm.
We review for abuse of discretion the district court’s
revocation of supervised release. United States v. Davis, 53
F.3d 638, 642-43 (4th Cir. 1995). 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
2006 & Supp. 2008). We review for clear error the factual
determinations underlying the conclusion that a violation
occurred. United States v. Carothers, 337 F.3d 1017, 1019 (8th
Cir. 2003). In this case, Thomas admitted to violating the
terms of his supervised release by twice engaging in misdemeanor
2
criminal conduct while on supervision. Accordingly, we find
that the district court did not abuse its discretion in revoking
Thomas’ supervised release.
Counsel also questions whether the district court
abused its discretion in sentencing Thomas to eight months’
imprisonment. A sentence imposed after revocation of supervised
release will be affirmed if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006).
Thomas’ eight-month sentence is within the advisory policy
statement range of eight to fourteen months and is below the
statutory maximum of three years of imprisonment. See 18
U.S.C.A. § 3583(e)(3).
During the revocation hearing, the district court had
available for its consideration the Probation Officer’s
violation report. The court heard argument from Thomas, his
counsel, and the Government. Although the court did not
specifically reference 18 U.S.C. § 3553(a) (2006) in announcing
its sentence, it is evident from the record that the court
considered Thomas’ history and characteristics, the level of
seriousness of his violations, and the need to promote respect
for the law. See United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006) (the district court need not explicitly address
each § 3553(a) factor). Accordingly, applying the analysis
3
articulated in Crudup, 461 F.3d at 438-39, we conclude that
Thomas’ sentence for violating the conditions of his supervised
release is not unreasonable, much less plainly so.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment revoking
Thomas’ supervised release and imposing an eight-month prison
term. This court requires that counsel inform Thomas, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Thomas 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 Thomas. 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
4