United States v. Evans

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4100
CONSTANCE SERENE EVANS,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
William L. Osteen, Sr., District Judge.
(CR-91-234-G)
Submitted: October 29, 1996
Decided: November 19, 1996
Before MURNAGHAN, WILLIAMS, and MICHAEL,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Scott P. Mebane, Assis-
tant United States Attorney, Greensboro, North Carolina, for Appel-
lee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
In 1992, Constance Serene Evans pled guilty to one count of bank
embezzlement, in violation of 18 U.S.C.A. § 656 (West Supp. 1996).
She had embezzled $23,000 from the bank where she worked as a
teller. After a brief confinement, Evans commenced a five-year period
of supervised release and began to pay $200 per month toward
$23,000 in restitution imposed by the district court.
Since January 1994, the district court has held four hearings moni-
toring Evans's compliance with the terms of her supervised release,
specifically over her failure to make timely payments, file timely
monthly reports, and keep the probation office informed of her
employment. The district court found the violations as alleged, but
three times allowed Evans to remedy her failures. At the fourth hear-
ing, the district court found that Evans willfully failed to comply with
the terms of her supervised release, by failing to make timely payment
toward restitution, failing to appear at a scheduled meeting with the
probation office, and applying for consumer credit without prior
approval from the probation office. Evans was sentenced to nine
months imprisonment, with the entire amount of restitution due and
owing. She appeals that revocation.
We review the district court's revocation of supervised release for
abuse of discretion. United States v. Stephenson , 928 F.2d 728, 731
(6th Cir. 1991); see United States v. Copley, 978 F.2d 829, 831 (4th
Cir. 1992) (applying the standard). Evans first challenges the district
court's restitution order in the underlying judgment, arguing that the
court improperly delegated the authority to establish a payment
schedule to the probation officer in violation of United States v.
Johnson, 48 F.3d 806, 809 (4th Cir. 1995). We hold that this claim
is not properly before this court.
2
An unappealed sentence or a sentence upheld on appeal is pre-
sumed valid until vacated under 28 U.S.C. § 2255 (1994), amended
by Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
No. 104-132, 110 Stat. 1214, the exclusive remedy for challenging the
validity of a sentence. United States v. Almand , 992 F.2d 316, 317-18
(11th Cir. 1993). Evans did not appeal her conviction and sentence,
nor has she filed a motion under § 2255. She has therefore improperly
raised this claim on this appeal.
Evans next argues that the district court erred in finding that she
willfully failed to pay the restitution, when in fact she was unable to
pay. See Bearden v. Georgia, 461 U.S. 660, 672-73 (1983). But the
record is clear that the district court's decision was based on the
monthly financial reports Evans submitted to the probation office and
Evans's own testimony. Counsel for Evans declined to argue that
Evans could not make the payments. Further, supervised release was
revoked for reasons other than the financial one. The district court's
actions were in full compliance with Bearden.
Accordingly, we find that the district court did not abuse its discre-
tion in revoking Evans's supervised release, and we affirm that deci-
sion. 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
3