United States v. Brannon

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-5079

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN BRANNON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:95-cr-00370-HMH-46)

Submitted: May 20, 2008 Decided: June 11, 2008

Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Lora E. Collins, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Reginald I. Lloyd, Assistant United
States Attorney, Columbia, South Carolina, Leesa Washington, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.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

John Brannon appeals the sixty-month sentence imposed

upon revocation of his supervised release. His attorney has filed

a brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating that there are no meritorious issues for review, but

suggesting that the court may have abused its discretion in

revoking release and imposing sentence. Brannon has filed a pro se

supplemental brief raising additional issues. After a thorough

review of the record, we affirm.

There was testimony at the revocation hearing that a

confidential informant purchased crack cocaine from Brannon. The

transaction was captured on tape. The district court found beyond

a reasonable doubt that Brannon had violated a condition of

supervised release.

The decision to revoke a defendant’s supervised release is

reviewed for abuse of discretion. United States v. Pregent, 190

F.3d 279, 282 (4th Cir. 1999). To revoke release, the district

court must find, based on a preponderance of the evidence, that the

defendant committed the charged violation of a condition of

release. 18 U.S.C. § 3583(e)(3) (2000); United States v.

Armstrong, 187 F.3d 392, 394 (4th Cir. 1999). Here, although the

district court applied the more rigorous evidentiary standard,

application of this standard did not violate Brannon’s substantial

rights and was not reversible error. See United States v. Olano,

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507 U.S. 725, 732 (1993). Further, contrary to Brannon’s assertion

on appeal, a defendant’s conviction on the criminal charge

underlying a petition to revoke supervised release is not a

prerequisite to revocation of release. See 18 U.S.C. § 3583(e)(3).

We will affirm a sentence imposed following revocation of

supervised release if it is within the applicable statutory range

and not plainly unreasonable. United States v. Crudup, 461 F.3d

433, 439-40 (4th Cir. 2006), cert. denied, 127 S. Ct. 1813 (2007).

Brannon’s sixty-month sentence equals the statutory maximum of five

years to which he was subject. See 18 U.S.C. § 3583(e)(3).

Further, in sentencing Brannon, the district court considered both

the advisory guideline range of fifty-one to sixty months, see U.S.

Sentencing Guidelines Manual §§ 7B1.4(a)(2), 7B1.4(b)(3)(A), p.s.

(1994), and the 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2007)

factors that the court was permitted to consider. See 18 U.S.C.

§ 3583(e); Crudup, 461 F.3d at 438, 440. Finally, the court stated

a proper basis for imposing sentence. See id. at 440. We conclude

that the sentence is not plainly unreasonable.

In accordance with Anders, we have reviewed the entire

record and have found no meritorious issues for appeal.

Accordingly, we affirm the judgment. This court requires counsel

to 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

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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 of the motion 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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