UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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