United States v. Bellamy

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARY ELIZABETH BELLAMY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Henry Coke Morgan, Jr., Senior
District Judge. (2:02-cr-00138)
Submitted: June 22, 2007 Decided: July 13, 2007
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Gretchen L. Taylor,
Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Alan M.
Salsbury, Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Mary Elizabeth Bellamy pled guilty to health care fraud,
in violation of 18 U.S.C. § 1347 (2000), and was sentenced to
thirteen months of imprisonment and three years of supervised
release. The district court revoked her supervised release based
upon her failure to provide copies of her bank statements, as
directed by the probation officer, and her failure to file complete
and truthful monthly reports. The district court sentenced her to
one day of imprisonment to be followed by thirty-five months and
twenty-nine days of supervised release. Bellamy appeals, and we
affirm.
Bellamy first contends that the district court erred by
revoking her supervised release. We review the district court’s
revocation of supervised release for an abuse of discretion.
United States v. Pregent, 190 F.3d 279, 282 (4th Cir. 1999). 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 2000 & Supp. 2007). This court reviews for
clear error factual determinations underlying the conclusion that
a violation occurred. United States v. Carothers, 337 F.3d 1017,
1019 (8th Cir. 2003).
Our review of the record convinces us that, even if the
district court erred by concluding that Bellamy failed to report a
joint bank account with her daughter, revocation of her supervised
- 2 -
release was nevertheless proper. The probation officer instructed
Bellamy to file copies of her bank statements when she filed her
monthly reports, which she failed to do. Although Bellamy
testified at the revocation hearing that she had computer problems,
sent the probation officer a note informing him of the problems,
and assumed from the probation officer’s silence that she did not
have to continue to file her bank statements, the district court
rejected her testimony. See United States v. Whalen, 82 F.3d 528,
532 (1st Cir. 1996) (finding district court’s credibility
determinations concerning evidence presented at a supervised
release revocation hearing not reviewable on appeal). We therefore
find that the district court did not abuse its discretion in
revoking her supervised release based upon her failure to submit
her bank statements, as directed by the probation officer.
Next, Bellamy asserts that her sentence is plainly
unreasonable because the imposition of an additional term of
supervised release is unduly harsh. This court will affirm a
sentence imposed after revocation of supervised release 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) (discussing standard), cert. denied, 127 S. Ct.
1813 (2007). We find that the district court did not err in
imposing a new term of supervised release. See Johnson v. United
States, 529 U.S. 694, 713 (2000) (holding that § 3583(e)(3)
- 3 -
authorizes district court to impose period of supervised release
following reimprisonment after revocation of supervised release).
The new term of supervised release did “not exceed the term of
supervised release authorized by statute for the [original] offense
. . . , less any term of imprisonment that was imposed upon
revocation of supervised release.” 18 U.S.C.A. § 3583(h) (West
2000 & Supp. 2007). Thus, the sentence is not plainly
unreasonable.
Finally, Bellamy contends that she has been improperly
prohibited, as a special condition of supervised release, from
furnishing paid or volunteer services to the disabled or to any
other discrete group. Because Bellamy did not object to the
imposition of this special condition in the district court, our
review is for plain error. See United States v. Alvarez, 478 F.3d
864, 866 (8th Cir. 2007) (providing standard of review); see also
United States v. Olano, 507 U.S. 725, 732-36 (1993) (discussing
standard). Although a sentencing court must impose various
statutorily required conditions of release, see 18 U.S.C.A.
§ 3583(d) (West 2000 & Supp. 2007), it also enjoys substantial
latitude to “impose any other condition it considers to be
appropriate, as long as that condition is ‘reasonably related’ to
statutory factors referred to in § 3583(d)(1).” United States v.
Dotson, 324 F.3d 256, 260 (4th Cir. 2003) (quoting § 3583(d)(1)).
Such factors include “the nature and circumstances of the offense
- 4 -
and the history and characteristics of the defendant.” 18 U.S.C.A.
§ 3553(a)(1) (West 2000 & Supp. 2007). Additionally, a special
condition must “involve[] no greater deprivation of liberty than is
reasonably necessary” to achieve its intended purpose. 18 U.S.C.A.
§ 3583(d)(2). We have reviewed the record on appeal in light of
these standards and conclude that Bellamy has failed to demonstrate
that the district court plainly erred in imposing this special
condition of supervised release. See United States v. Carlson, 406
F.3d 529, 532 (8th Cir. 2005) (upholding special condition
prohibiting work in medical field where defendant was employed as
orthopedic physician’s assistant and was convicted of health care
fraud because he fraudulently obtained prescription medications).
Accordingly, we affirm the district court’s revocation
order. 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
- 5 -