UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4952
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
LEONARD PITTS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:06-cr-00817-HFF-1)
Submitted: February 24, 2009 Decided: March 23, 2009
Before WILKINSON and MOTZ, 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Affirmed by unpublished per curiam opinion.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. David Calhoun Stephens,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leonard Pitts appeals the district court’s judgment
revoking his supervised release and imposing a sentence of five
months in prison. On appeal, Pitts’s attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967),
asserting, in her opinion, there are no meritorious grounds for
appeal but raising the issue of whether the district court
abused its discretion by revoking Pitts’s supervised release and
sentencing him to serve five months in prison. Pitts has filed
a pro se supplemental brief asserting the same issue and
contending the district court erred by failing to hold a prompt
preliminary hearing under Fed. R. Crim. P. 32.1(b). Finding no
abuse of discretion or reversible error, we affirm.
Pitts was convicted of bank fraud in violation of 18
U.S.C. § 1344 (2006), a Class B felony, and the district court
sentenced him to one day in prison, five years of supervised
release, and $14,380.99 in restitution. As a special condition
of his supervised release, Pitts was ordered to pay his
restitution at a rate of $250 per month. On June 10, 2008, the
probation officer petitioned the district court for an arrest
warrant for Pitts based on his non-compliance with court-ordered
restitution despite information confirming he was able to pay.
The district court ordered that a warrant for Pitts’s arrest be
issued and that bond be set at the discretion of the magistrate
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judge. On June 12, 2008, Pitts was arrested; the magistrate
judge appointed counsel; and the clerk scheduled the preliminary
hearing for June 16, 2008. On June 16, 2008, the hearing was
held; and on June 20, 2008, Pitts was released on bond.
At the final revocation hearing, Pitts admitted the
violation alleged in the petition, and the district court found
a violation based on the admission. The court correctly noted
that it was authorized to revoke Pitts’s supervised release and
impose a prison term of up to three years, followed by up to
five years of supervised release less any revocation term. See
18 U.S.C. § 3583(b)(1), (e)(3), (h) (2006). The court further
correctly determined that his Chapter 7 advisory guideline range
was three to nine months. See U.S. Sentencing Guidelines Manual
§ 7B1.4 (2007). The probation officer recommended a sentence in
the middle of the range based on Pitts’s unwillingness to pay
his restitution obligation. Pitts, who had paid his restitution
prior to the final hearing, requested that he be continued on
supervision. The district court revoked his supervised release
and sentenced him to serve five months in prison.
On appeal, Pitts’s attorney concedes that, given the
facts of the case and the nature of Pitts’s conduct while on
supervised release, the district court did not abuse its
discretion. In his pro se supplemental brief, Pitts asserts
that the district court did in fact commit error, and that its
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error was in failing to hold a prompt preliminary hearing in
compliance with Fed. R. Crim. P. 32.1(b).
We review a judgment revoking supervised release and
imposing a term of imprisonment for abuse of discretion. United
States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). To revoke
supervised release, a district court need only find a violation
by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3)
(2006). We will affirm a sentence imposed after revocation of
supervised release if it is within the prescribed statutory
range and not plainly unreasonable. United States v. Crudup,
461 F.3d 433, 439-40 (4th Cir. 2006). While a district court
must consider the Chapter Seven policy statements, and the
statutory requirements and factors applicable to revocation
sentences, the district court ultimately has broad discretion to
revoke the previous sentence and impose a term of imprisonment
up to the statutory maximum. Id. at 438-39.
We have reviewed the record and conclude that the
district court did not abuse its discretion in revoking Pitts’s
supervised release, and his sentence to five months in prison is
not plainly unreasonable. We also find Pitts’s assertion of
error under Fed. R. Crim. P. 32.1(b) without merit. Because
Pitts did not raise this issue in the district court, he must
show plain error affecting his substantial rights. See Fed. R.
Crim. P. 52; United States v. Olano, 507 U.S. 725, 733 (1993).
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Pitts was arrested pursuant to a warrant issued by the district
court based on the probation officer’s petition. Thus, even
prior to his arrest, there was a judicial determination of
probable cause. See Gerstein v. Pugh, 420 U.S. 103, 116 n.18
(1975). Moreover, promptly after his arrest, the magistrate
judge appointed him counsel and held a preliminary hearing.
Even if Pitts could somehow show error, he has not shown any
prejudice, because he was released on bond prior to his
revocation hearing and he admitted the violation.
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 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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