UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4222
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
BOBBY COLEMAN, a/k/a Dirty Red,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Aiken. Cameron McGowan Currie, District Judge.
(1:91-cr-00189-CMC-3)
Submitted: May 4, 2007 Decided: September 12, 2007
Before WILLIAMS, Chief Judge, and MOTZ and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Katherine E. Evatt, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Robert Claude Jendron, Jr.,
Jonathan Scott Gasser, Assistant United States Attorneys, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bobby Coleman appeals the district court’s order revoking
his supervised release and sentencing him to twenty-four months’
imprisonment. Counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no
non-frivolous grounds for appeal but questioning whether the
district court abused its discretion in finding Coleman committed
a Grade A violation of the conditions of his supervised release.
Coleman filed a pro se supplemental brief and addendum to the brief
asserting additional claims. Finding no error, we affirm.
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). An abuse of
discretion occurs when the court fails or refuses to exercise its
discretion or when its exercise of discretion is flawed by an
erroneous legal or factual premise. James v. Jacobson, 6 F.3d 233,
239 (4th Cir. 1993). The supervised release statute requires that
the individual refrain from committing another federal, state, or
local crime during the term of supervised release. See 18 U.S.C.
§ 3583(d) (2000). It is not necessary that the individual be
subject to a separate federal, state, or local prosecution for the
conduct that violates the terms of supervised release. USSG
§ 7B1.1, comment. (n.1) (2005). The district court need only find
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a violation of a condition of supervised release by a preponderance
of the evidence. See 18 U.S.C. § 3583(e)(3) (2000).
We find there was sufficient evidence that Coleman
committed the offense of possession with intent to distribute
cocaine, resulting in a Grade A violation of the conditions of
supervised release. We also conclude that Coleman’s sentence is
within the statutory maximum sentencing range, and the district
court’s revocation proceedings otherwise comport with due process.
See 18 U.S.C. § 3583 (2000).
Coleman claims in his pro se supplemental brief that
counsel was ineffective in failing to move to suppress evidence at
the revocation hearing. Ineffective assistance of counsel claims
must be brought in a collateral proceeding under 28 U.S.C. § 2255
(2000), unless it conclusively appears from the face of the record
that counsel was ineffective. United States v. DeFusco, 949 F.2d
114, 120-21 (4th Cir. 1991). We find it is not conclusive from the
face of the record that counsel provided ineffective assistance and
thus the claim is not cognizable on direct appeal.
In addition, we find Coleman’s claim that his term of
supervised release and sentence on revocation of supervised release
amounted to double jeopardy is meritless. See United States v.
Evans, 159 F.3d 908, 913 (4th Cir. 1998) (“A term of supervised
release, the revocation of that term, and any additional term of
imprisonment imposed for violating the terms of the supervised
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release are all part of the original sentence”)(citation omitted).
Finally, to the extent Coleman challenges witness credibility, the
district court’s determination of witness credibility is not
reviewable. See United States v. Saunders, 886 F.2d 56, 60 (4th
Cir. 1989). Finding no error, we affirm the judgment of the
district court.
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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