United States v. Jenkins

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4155

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

ELIZABETH JENKINS, a/k/a Lady Bird,

Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Irene M. Keeley, Chief
District Judge. (1:95-cr-00002-IMK)

Submitted: July 25, 2007 Decided: August 9, 2007

Before NIEMEYER and MOTZ, Circuit Judges, and WILKINS, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Scott C. Brown, SCOTT C. BROWN LAW OFFICE, Wheeling, West Virginia,
for Appellant. Sharon L. Potter, United States Attorney, Paul T.
Camilletti, Assistant United States Attorney, Martinsburg, West
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

On November 3, 1995, Elizabeth Jenkins was sentenced to

seventy-seven months’ imprisonment and a three year term of

supervised release based on a guilty plea to a charge of conspiring

to possess with intent to distribute and distribution of controlled

substances. On April 26, 1999, Jenkins’ sentence was reduced to

sixty-three months’ imprisonment following a successful 28 U.S.C.

§ 2255 (2000) motion. This sentence was to run concurrently with

Jenkins’ state sentences. Jenkins completed her federal sentence

on May 31, 2000, but remained in state custody until approximately

June 25, 2005.

On October 3, 2006, the United States Probation Office

filed a petition for a warrant or summons for Jenkins, which

alleged that she failed to report to the probation office within

seventy-two hours of her release from state custody. Jenkins was

arrested that same month in Florida. Jenkins eventually bonded out

on November 9, 2006; however, a warrant for her arrest was issued

two days later for alleged failures to comply with the conditions

of her supervised release. Jenkins was eventually arrested on

December 23, 2006.

The probation office submitted an amended petition for a

warrant or summons for Jenkins on January 9, 2007. This amended

petition alleged four new violations in addition to the original

allegation of failing to report to probation. The petition alleged

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Jenkins possessed and used cocaine because she tested positive for

cocaine use when arrested in October 2006. The petition also

alleged Jenkins possessed and used cocaine in December 2006

because, when arrested on December 23, 2006, Jenkins admitted to

owning a crack pipe and to smoking crack the night before her

arrest.

Jenkins appeared for her revocation hearing on January

10, 2007 and admitted to the five alleged violations. The district

court found Jenkins in violation and imposed a six month sentence

and thirty months of supervised release. Jenkins timely noted her

appeal and has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), in which she raises two potential errors.* We

affirm the district court’s judgment.

On appeal, Jenkins first questions whether the three

years of supervised release from her original sentence expired on

May 31, 2003. Following her successful § 2255 motion, Jenkins’

sentence was reduced to sixty-three months and was to run

concurrent to any state sentence. Jenkins completed her federal

sentence on May 31, 2000. However, her three years of supervised

release did not then end on May 31, 2003 because Jenkins remained

in state custody until June 25, 2005 and 18 U.S.C. § 3624(e) (2000)

states, in pertinent part, that “a term of supervised release does

*
Jenkins was advised of her right to file a pro se
supplemental brief. She has elected not to do so.

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not run during any period in which the person is imprisoned in

connection with a conviction for a Federal, State or local crime.”

18 U.S.C. § 3624(e). Therefore, Jenkins’ three years of supervised

release did not begin until June 25, 2005.

Jenkins next questions whether the district court erred

in revoking her supervised release. A decision to revoke a

defendant’s supervised release is reviewed for abuse of discretion.

United States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). A

district court need only find a violation by a preponderance of the

evidence to revoke a defendant’s supervised release. 18 U.S.C.A.

§ 3583(e)(3) (West 2000 and Supp. 2006). Here, Jenkins, under

oath, admitted to each of the five alleged violations. Jenkins

attempts to excuse her failure to initially report based on her

attorney’s allegedly erroneous advice that she did not need to

report to federal probation. The district court did not err in

revoking Jenkins’ supervised release as, again, she admitted under

oath to each of the alleged violations.

Finally, Jenkins questions whether the district court

erred in imposing a six month sentence and thirty months of

supervised release. This court reviews a sentence imposed as a

result of a supervised release violation to determine whether the

sentence was plainly unreasonable. United States v. Crudup, 461

F.3d 433, 438 (4th Cir. 2006). The first step in this analysis is

whether the sentence was unreasonable. Id. 461 F.3d at 438. This

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court, in determining reasonableness, follows generally the

procedural and substantive considerations employed in reviewing

original sentences. Id. If a sentence imposed after a revocation

is not unreasonable, this court will not proceed to the second

prong of the analysis - whether the sentence was plainly

unreasonable. Id. at 439 (emphasis added).

Also, although a district court must consider the helpful

policy statements in Chapter Seven of the sentencing guidelines

along with the statutory requirements of 18 U.S.C. § 3583 (2000)

and 18 U.S.C. § 3553(a) (2000), the district court ultimately has

broad discretion to revoke its previous sentence and impose a term

of imprisonment up to the statutory maximum. Crudup, 461 F.3d at

439 (quoting United States v. Lewis, 424 F.3d 239, 244 (2d Cir.

2005)). Finally, on review, this court will assume a deferential

appellate posture concerning issues of fact and the exercise of

discretion. Id.

Jenkins’ sentence was both procedurally and substantively

reasonable. Prior to imposing sentence, the district court

properly determined Jenkins’ advisory guidelines range. Jenkins’

most serious violation was a grade C offense, and combined with her

criminal history category of IV, resulted in an advisory guidelines

sentence of six months to two years. USSG § 7B1.4(a). The

district court also determined that Jenkins admitted to five

violations of the conditions of her supervised release, including

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failing to report to probation. Moreover, after being released on

bond, Jenkins refused to comply with the conditions of her release

and, again, disappeared from supervision. Accordingly, her six-

month sentence with an additional thirty months of supervised

release was both procedurally and substantively reasonable.

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We therefore affirm the district court’s judgment. This

court requires that counsel inform Jenkins, in writing, of the

right to petition the Supreme Court of the United States for

further review. If Jenkins 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 Jenkins.

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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