UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5115
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES HINTON FAIRLEY,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00180-FDW-1)
Submitted: August 16, 2010 Decided: September 9, 2010
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Ross H. Richardson, FEDERAL DEFENDERS OF
WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for
Appellant. Amy Elizabeth Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Hinton Fairley appeals his six-month sentence
following the revocation of his supervised release. Fairley’s
attorney has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), in which she examines the reasonableness of
Fairley’s sentence, and concludes that there are no meritorious
issues for appeal. Fairley was informed of his right to file a
pro se supplemental brief, but has not done so. The Government
has given written notice that it will not file a brief.
While counsel does not address the issue in her Anders
brief, a brief examination of Fairley’s revocation hearing is in
order. This Court reviews a district court’s decision to revoke
a defendant’s supervised release for abuse of discretion.
United States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). A
district court abuses its discretion when it 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 district court need only find a violation of a
condition of supervised release by a preponderance of the
evidence, 18 U.S.C.A. § 3583(e)(3) (West 2006 & Supp. 2008), and
this Court reviews for clear error the district court’s factual
determinations informing its conclusion that a violation
occurred. See United States v. Carothers, 337 F.3d 1017, 1018
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(8th Cir. 2003); United States v. Whalen, 82 F.3d 528, 532
(1st Cir. 1996). Moreover, given the “flexible, informal nature
of the revocation hearing . . . the full panoply of procedural
safeguards associated with a criminal trial,” such as Federal
Rule of Criminal Procedure 11, are not required. See Black v.
Romano, 471 U.S. 606, 613 (1985).
Fairley admitted using cocaine and marijuana on a
regular basis, missing at least twelve scheduled drug tests and
making only four restitution payments in two years’ time, all in
violation of the conditions of his supervised release.
Moreover, Fairley does not contest the factual basis for his
supervised release violations on appeal. Accordingly, we find
that the district court did not abuse its discretion in revoking
Fairley’s supervised release.
As for Fairley’s sentence, this court will affirm a
sentence imposed following revocation of supervised release if
it is within the prescribed statutory range and is not plainly
unreasonable. United States v. Crudup, 461 F.3d 433, 437-39
(4th Cir. 2006). Fairley’s six-month sentence is in the middle
of the advisory policy statement range of three to nine months’
imprisonment, see USSG § 7B1.4(a), and is below the statutory
maximum of two years of imprisonment. See 18 U.S.C.A.
§ 3583(e)(3). Although Fairley requested a “time-served” or
bottom-of-the-guidelines sentence based on the fact that he has
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AIDS and a host of other physical ailments, the district court
was well within its discretion to impose a different sentence.
It is clear from the record that the district court
considered the factors of 18 U.S.C. § 3553(a) (2006). See
United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006)
(court need not “robotically tick through § 3553(a)’s every
subsection.”). In particular, the district court focused
heavily on the rehabilitative nature of a mid-guideline sentence
in helping Fairley to overcome his drug addiction in denying
Fairley’s request for a lighter sentence. Applying Crudup to
this case, we find that Fairley’s sentence is not unreasonable,
much less plainly so.
We have examined the entire record in accordance with
the requirements of Anders and have found no other meritorious
issues for appeal. We therefore affirm the district court’s
judgment. This court requires that counsel inform Fairley, in
writing, of the right to petition the Supreme Court of the
United States for further review. If Fairley 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 Fairley. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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