United States v. Thomas

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 04-4381

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOHNNY THOMAS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-94-75)

Submitted: May 25, 2005 Decided: June 9, 2005

Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Terry F. Rose, Smithfield, North Carolina, for Appellant. Anne
Margaret Hayes, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Johnny Thomas appeals the district court's order revoking

his supervised release and sentencing him to twenty-one months’

imprisonment following repeated violations of his supervised

release. In his appeal, filed pursuant to Anders v. California,

386 U.S. 738 (1967), counsel for Thomas claims that the district

court abused its discretion in revoking Thomas’ supervised release

and that Thomas was subjected to ineffective assistance of counsel.

This court reviews a district court’s revocation of

supervised release for an abuse of discretion. See 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. See 18 U.S.C.A.

§ 3583(e)(3) (West 2000 & Supp. 2004); Johnson v. United States,

529 U.S. 694, 700 (2000). Thomas conceded the Government’s

allegations of his continuing involvement in criminal activity at

the revocation hearing and likewise conceded that he was in

violation of his supervised release. We have independently

reviewed the record and conclude there was ample evidence from

which the district court could find Thomas in violation of his

supervised release and further, that the court properly imposed a

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sentence of twenty-one months’ imprisonment.* Accordingly, we deny

relief on this claim.

This court will not consider Thomas’ ineffective

assistance of counsel claim on direct appeal “unless counsel’s

ineffectiveness conclusively appears on the record.” United

States v. James, 337 F.3d 387, 391 (4th Cir. 2003), cert. denied,

124 S. Ct. 1111 (2004). Our review of the record discloses no

evidence that Thomas was subjected to ineffective assistance of

counsel. Accordingly, we likewise deny relief on this claim.

Finally, we have reviewed and found meritless Thomas’

supplemental claims regarding the validity of his seizure, the use

of alleged hearsay testimony at the revocation hearing, and the

assertion that his supervised release term expired prior to the

revocation hearing.

Finding no meritorious issues upon our review of the

record, we affirm the judgment of the district court. 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 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.

*
Because the sentencing guidelines relating to revocation of
supervised release have always been advisory, see Sentencing
Guidelines Manual, Ch. 7, Pt. A, the sentence in this appeal is not
impacted by the decision in United States v. Booker, 125 S. Ct. 738
(2005).

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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 the decisional process.

AFFIRMED

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