United States v. Carter

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-4061

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RICKY GENE CARTER,

Defendant - Appellant.

Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-01-11)

Submitted: June 8, 2005 Decided: June 21, 2005

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, David R. Bungard, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Kasey Warner,
United States Attorney, Joshua C. Hanks, 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Unpublished opinions are not binding precedent in this circuit.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:

Ricky Gene Carter appeals from the district court’s order

revoking his supervised release and sentencing him to twelve

months’ imprisonment. Carter’s attorney has filed a brief pursuant

to Anders v. California, 386 U.S. 738 (1967), representing that, in

her view, there are no meritorious issues for appeal. Carter has

been notified of his right to file a pro se supplemental brief but

has not done so.

The only issue Carter raises on appeal is whether his

sentence should have been below the applicable sentencing

guidelines range of eight to fourteen months. A defendant is

generally precluded from appealing a district court’s refusal to

award a downward departure from the sentencing guidelines range.

See United States v. Bayerle, 898 F.2d 28, 30-31 (4th Cir. 1990).

Moreover, because the Guidelines’ Chapter Seven policy statements

are purely advisory,* this court reviews a sentence imposed upon

revocation of supervised release and authorized under 18 U.S.C.

§ 3583(e)(3) for abuse of discretion. United States v. Davis, 53

F.3d 638, 642-43 (4th Cir. 1995).

The district court correctly determined Carter’s

sentencing range of eight to fourteen months, and his twelve month

*
Because the sentencing guidelines relating to revocation of
supervised release have always been advisory, see U.S. 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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sentence was within that range. As the sentence was not imposed in

violation of law and the sentencing guidelines were properly

applied, the district court did not abuse its discretion.

Pursuant to Anders, we have examined the entire record

and find no meritorious issues for appeal. Accordingly, we affirm

Carter’s sentence. This court requires that counsel inform her

client, in writing, of his right to petition the Supreme Court of

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 the decisional process.

AFFIRMED

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