United States v. Thomas J. Shields

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4134
THOMAS JUNIOR SHIELDS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
Frank W. Bullock, Jr., Chief District Judge.
(CR-89-26-D)
Submitted: September 28, 1999
Decided: October 14, 1999
Before MURNAGHAN and NIEMEYER, Circuit Judges, and
BUTZNER, Senior District Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Louis C. Allen III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Walter C. Holton, Jr., United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North Caro-
lina, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Thomas Junior Shields appeals the district court's revocation of his
supervised release term and its imposition of a twenty-four-month
prison sentence, based upon Shields' violation of the terms and condi-
tions of his supervised release. Shields' attorney has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967), claiming
that the district court abused its discretion by revoking Shields' super-
vised release and that the twenty-four-month sentence was plainly
unreasonable, but concluding that there are no meritorious issues for
appeal. Shields filed a supplemental pro se brief arguing that the dis-
trict court erred by admitting hearsay evidence at the revocation hear-
ing and that the district court abused its discretion by revoking his
supervised release for simply failing a urine test. Finding no error, we
affirm.
Shields was convicted in 1989 of being a felon in possession of a
firearm, 18 U.S.C. § 922(g) (1994), and sentenced to ten years of
imprisonment, followed by three years of supervised release. Shields
completed his term of imprisonment and began his term of supervised
release on February 12, 1998.
After Shields was found in possession of a firearm and tested posi-
tive for cocaine use, the district court held a supervised release revo-
cation hearing. Shields admitted that he tested positive for cocaine on
two occasions but denied possession of the firearm. The government
presented the testimony of Harnett County Deputy Sheriff Parshall
who stated that on September 7, 1998, he stopped a car in which
Shields was one of four occupants. Over Shields' objection, Parshall
testified that one of the other passengers in the car, Ms. Jamie Carroll,
told him that Shields had handed her a P-89 Ruger and told her to "sit
on it."* Carroll refused and Shields threw the weapon on the floor-
_________________________________________________________________
*Carroll was not called as a witness.
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board in front of her. The gun was found beneath the driver's seat.
Carroll also told Parshall that she had been at a party with Shields ear-
lier in the evening and that she saw Shields "with the handgun all
night long and [he] was waving it around frantically at the party." The
government also presented the testimony of Lieutenant William C.
Wade, who testified as to statements made to him the following morn-
ing by Ms. Carroll which contained the same facts as the statements
made to Parshall.
Based on this evidence, the district court found that Shields had
violated his supervised release both by possessing the firearm and by
testing positive for cocaine use--both Grade B violations--with a
guideline range of twenty-one to twenty-seven months imprisonment.
The district court sentenced Shields to twenty-four months imprison-
ment, the statutory maximum. See 18 U.S.C.§ 3583(e)(3) (1994).
Shields appeals.
This court reviews the district court's decision to revoke a defen-
dant's supervised release for an abuse of discretion. See United States
v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). Revocation of super-
vised release is mandatory if the defendant unlawfully possesses a
controlled substance or a firearm. See 18 U.S.C.A. § 3583(g) (West
1985 & Supp. 1999). The district court need only find a violation of
a condition of supervised release by a preponderance of the evidence.
See 18 U.S.C. § 3583(e)(3). Because the evidence was sufficient to
establish that Shields tested positive for a controlled substance and
possessed a firearm--either of which provided independent grounds
for revoking supervised release--we find no abuse of discretion in the
district court's decision to revoke his supervised release.
In his supplemental pro se brief, Shields argues, first, that the dis-
trict court erred by allowing Parshall and Wade to testify regarding
statements made to them by Carroll. However, Fed. R. Evid.
1101(d)(3) explicitly provides that the Rules of Evidence do not apply
to miscellaneous proceedings such as probation revocation hearings.
Shields also claims that the district court has the discretion not to
revoke supervised release "when a defendant simply fails a drug test."
However, because the firearms possession provided an independent
basis for mandatory revocation of Shields' supervised release, this
claim is also without merit.
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Because Shields' sentence does not exceed the maximum statutory
limit established under 18 U.S.C.A. § 3583(e)(3), this court reviews
Shield's sentence only to determine if it is plainly unreasonable. See
18 U.S.C. § 3742(a)(4) (1994). Given the facts of this case and the
nature of Shields' conduct, we cannot say that the twenty-four-month
sentence imposed by the district court was plainly unreasonable.
Pursuant to Anders, this court has reviewed the record for potential
error and has found none. Therefore, we affirm the district court's
order revoking Shields' supervised release and imposing a twenty-
four month sentence. We deny counsel's motion to withdraw at this
time. This court requires that counsel inform his client, in writing, of
his 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
again move in this court for leave to withdraw from representation.
Counsel's motion must state that a copy thereof was served on the cli-
ent. We dispense with oral argument because the facts and legal con-
tentions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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