UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4053
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JERRY WAYNE MASSEY, JR., a/k/a J. J. Massey,
a/k/a Jerry Wayne Massey, a/k/a Jerry Wayne
Mossey,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (CR-96-1022)
Submitted: June 8, 2005 Decided: July 11, 2005
Before MICHAEL, MOTZ, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Elizabeth Jean Howard, OFFICE OF
THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jerry Wayne Massey, Jr. appeals a district court judgment
revoking his supervised release and sentencing him to 37 months’
imprisonment. On appeal, Massey’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), claiming
there are no meritorious issues on appeal, but raising the question
of whether the district court abused its discretion by sentencing
Massey to 37 months’ imprisonment. Massey filed a pro se
supplemental brief raising several issues with respect to the
sufficiency of the evidence and the effectiveness of counsel.
Finding no error, we affirm.
We review the district court’s decision to revoke a
defendant’s supervised release for an abuse of discretion. United
States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). 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. 2004). Factual determinations are
reviewed for clear error. United States v. Carothers, 337 F.3d
1017, 1019 (8th Cir. 2003). We find the evidence was more than
sufficient to support the court’s decision to revoke supervised
release. With respect to Massey’s sentence, it did not exceed the
statutory maximum and was plainly reasonable. 18 U.S.C.
§ 3742(a)(4) (2000).
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With respect to Massey’s claim of ineffective assistance
of counsel, we have held that claims of ineffective assistance
should be raised in a 28 U.S.C. § 2255 (2000) motion in the
district court rather than on appeal, unless the record
conclusively shows ineffective assistance. United States v. King,
119 F.3d 290, 295 (4th Cir. 1997). Because the record does not
conclusively show Massey’s counsel was ineffective, the claim is
not reviewable. We have reviewed Massey’s remaining claims and
find them without merit.
Pursuant to Anders, we have examined the entire record
and find no meritorious issues for appeal. Accordingly, we affirm
Massey’s judgment. This court requires counsel to inform his
client, in writing, of his right to petition the Supreme Court of
the United States for further review. If the client requests a
petition be filed, but counsel believes 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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