UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4199
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KIPP POLSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:06-cr-00149)
Submitted: September 11, 2007 Decided: September 13, 2007
Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven Slawinski, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kipp Polston appeals the district court’s order revoking
his supervised release and sentencing him to eleven months in
prison. Polston’s attorney has filed a brief pursuant to Anders
v. California, 386 U.S. 738 (1967), representing that there are no
meritorious grounds for appeal, but raising as a possible issue
whether the district court plainly erred when it refused to allow
Polston an opportunity to respond to the Government’s argument in
favor of supervised release revocation. Polston was advised of his
right to file a pro se supplemental brief but has not done so. The
Government elected not to file a responding brief. Finding no
reversible error, we affirm.
Under 18 U.S.C. § 3583(e)(3) (2000), the district court
may revoke a term of supervised release and require the defendant
to serve in prison all or part of the term of supervised release
authorized by statute for the offense that resulted in imposition
of the term of supervised release without granting credit for time
previously served on post-release supervision. We review the
district court's decision to revoke a defendant's 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. § 3583(e)(3) (2000). Polston admitted to the
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violations alleged in the petition to revoke his supervised
release. Accordingly, we conclude the district court did not abuse
its discretion in revoking his supervised release. Moreover,
Polston’s revocation sentence was within the advisory Chapter 7
revocation range of five to eleven months.
We also conclude that, contrary to Polston’s attorney’s
assertions, both Polston and his attorney were given ample
opportunity to argue to the district court why revocation of
supervised release was unwarranted. We find the district court did
not err in rejecting their arguments and revoking Polston’s
supervised release.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues. We
therefore affirm the district court’s revocation of Polston’s
supervised release and the resulting eleven-month sentence. This
court requires that counsel inform Polston in writing of his right
to petition the Supreme Court of the United States for further
review. If Polston requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
file a motion with this court for leave to withdraw from
representation. Counsel's motion must state that a copy thereof
was served on Polston. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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