UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4572
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DANELL LEWIS, a/k/a Darnell Woodson, a/k/a
“D”,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Charles H. Haden II,
District Judge. (CR-98-161)
Submitted: January 29, 2004 Decided: February 9, 2004
Before WILKINSON, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, John L. File,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Finding that Danell Lewis violated the terms of his
supervised release, the district court revoked his supervised
release and sentenced him to twenty-three months’ imprisonment and
a thirteen-month term of supervised release. Lewis’ counsel has
filed a brief in accordance with Anders v. California, 386 U.S. 738
(1967), challenging the sentence. Although informed of his right
to do so, Lewis has not filed a pro se supplemental brief. We
affirm.
We review an order imposing a sentence after revocation
of supervised release for abuse of discretion. United States v.
Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). Lewis first challenges
the court’s determination that he possessed cocaine base with
intent to distribute, thereby violating a condition of his
supervised release.* 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) (2000); United States v.
Copley, 978 F.2d 829, 831 (4th Cir. 1992). We review for clear
error factual determinations informing the conclusion that a
violation occurred. United States v. Carothers, 337 F.3d 1017,
1019 (8th Cir. 2003). We conclude that the district court did not
*
Lewis does not contest the court’s determination that he
violated other conditions of his supervised release, as alleged in
the probation officer’s “Petition for Warrant or Summons for
Offender Under Supervision,” filed on April 1, 2003.
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abuse its discretion in revoking Lewis’ supervised release based on
the uncontradicted testimony of witnesses at the revocation hearing
regarding Lewis’ possession of cocaine base with the intent to
distribute it.
Lewis also asserts that his twenty-three-month sentence
is excessive and that the district court should have sentenced him
in accordance with the policy statements set forth in U.S.
Sentencing Guidelines Manual § 7B1.4 (2002). Chapter Seven of the
U.S. Sentencing Guidelines Manual sets forth policy statements
offering recommended sentencing ranges for revocation of probation
and supervised release. Chapter Seven is advisory and non-binding.
Davis, 53 F.3d at 642. However, the Court should consider the
policy statements before imposing sentence. Id. If the Court has
considered the relevant factors and the applicable policy
statements, the Court has the discretion to impose a sentence
outside the ranges set forth in the Guidelines. Id. Because the
district court was presented with and explicitly considered the
suggested sentencing range of USSG § 7B1.4, and Lewis’ sentence
does not exceed the statutory maximum under 18 U.S.C. § 3583
(2000), we find no error in Lewis’ sentence.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Lewis’ sentence. This court requires that counsel inform his
client, in writing, of his right to petition the Supreme Court of
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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 move in this court for leave
to withdraw from representation. 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 in the decisional process.
AFFIRMED
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