UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4971
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
KELLY JOSEPH RUCKER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Ashville. Martin K. Reidinger,
District Judge. (1:09-cr-00034-MR-DLH-1)
Submitted: July 3, 2014 Decided: July 17, 2014
Before WILKINSON, NIEMEYER, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
D. Baker McIntyre III, 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Unpublished opinions are not binding precedent in this circuit.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:
Kelly Joseph Rucker appeals from the revocation of his
supervised release and the imposition of a prison term of twelve
months and one day. On appeal, Rucker’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
concluding that there are no meritorious issues on appeal but
questioning whether Rucker was sentenced over the statutory
maximum of twenty-four months, given the prior sentences he
served (totaling twenty months) for violations of his supervised
release. Neither Rucker nor the Government has filed an
additional brief. We affirm.
A district court may revoke a term of supervised
release and impose a term of imprisonment after “find[ing] by a
preponderance of the evidence that the defendant violated a
condition of supervised release.” 18 U.S.C. § 3583(e)(3)
(2012). “[A] defendant whose term is revoked . . . may not be
required to serve on any such revocation more than . . . 2 years
in prison if such offense is a class C or D felony . . . .” Id.
Under a prior version of this statute, we “assume[d]
without deciding[] that § 3583(e)(3)’s maximum prison term
limits the total prison time that may be imposed for multiple
violations of supervised release.” United States v. Hager, 288
F.3d 136, 137 (4th Cir. 2002). However, section 3583 was
amended in 2003 by the Prosecutorial Remedies and Other Tools to
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End the Exploitation of Children Today Act of 2003 (“PROTECT
Act” or “Act”). The Act added the phrase “on any such
revocation” to § 3583(e)(3). Every Circuit to address the
amended version of § 3583(e)(3) has concluded that “prior time
served for violations of supervised release is not credited
towards and so does not limit the statutory maximum that a court
may impose for subsequent violations of supervised release.”
United States v. Perry, 743 F.3d 238, 241-42 (7th Cir. 2014)
(collecting cases); see also United States v. Tapia-Escalera,
356 F.3d 181, 188 (1st Cir. 2004) (noting that, through the
PROTECT Act, “Congress has altered the statute to adopt the
government’s position” that the terms of imprisonment do not
aggregate (emphasis omitted)). We agree.
Accordingly, we conclude that the district court
properly determined that Rucker’s prior revocation sentences did
not limit the statutory maximum available and, thus, that
Rucker’s sentence does not exceed the statutory maximum. In
accordance with Anders, we have reviewed the entire record in
this case for meritorious claims and have found none.
Accordingly, we affirm the district court’s judgment.
This court requires that counsel inform his 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
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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 this court and
argument would not aid the decisional process.
AFFIRMED
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