UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4233
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TYVONE MAURICE SMITH,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:04-cr-00306-RJC-CH-1)
Submitted: August 25, 2011 Decided: September 20, 2011
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James S. Weidner, Jr., LAW OFFICE OF JAMES S. WEIDNER, JR.,
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Unpublished opinions are not binding precedent in this circuit.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:
Tyvone Maurice Smith was convicted of violating the
terms of his supervised release and was sentenced to twenty-one
months in prison. Smith now appeals. His attorney has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal.
Counsel questions, however, whether the evidence supported a
finding that Smith violated the terms of his release and whether
the sentence is plainly unreasonable. Smith has filed a pro se
brief, with supplements, raising additional issues. We affirm.
Smith initially contends that there was insufficient
evidence upon which to find that he violated the terms of
release. We review a district court’s decision to revoke
supervised release for abuse of discretion. United States v.
Copley, 978 F.2d 829, 831 (4th Cir 1992). To revoke release,
the district court need only find a violation of a condition of
release by a preponderance of the evidence. 18 U.S.C.A.
§ 3583(e)(3) (West Supp. 2011). This burden “simply requires
the trier of fact to believe that the existence of a fact is
more probable than its nonexistence.” United States v. Manigan,
592 F.3d 621, 631 (4th Cir. 2010) (internal quotation marks
omitted). We review for clear error factual findings underlying
the conclusion that a violation of supervised release occurred.
United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).
2
Credibility determinations made by the district court at
revocation hearings are rarely reviewable. United States v.
Cates, 613 F.3d 856, 858 (6th Cir. 2010).
At Smith’s revocation hearing, an officer testified
that, when a search warrant was executed at a residence in
Charlotte, North Carolina, Smith fled through the back door of
the house. The officer stated that he ordered Smith to stop and
lie on the ground. As Smith complied, the officer saw him place
a bag containing ten individually wrapped packages of crack
cocaine on the ground near a fence post. Additionally, Smith
had a package of crack in one of his pockets. The officer also
testified that a confidential informant had recently purchased
crack from a different individual inside the residence.
Based on this testimony, which the district court
found credible, the court determined that the United States had
more than met its evidentiary burden, stating that the evidence
that Smith had violated the terms of release was overwhelming.
See United States v. Ruiz-Gea, 340 F.3d 1181, 1189 (10th Cir.
2003). After reviewing the record and giving due deference to
the district court’s credibility determination in favor of the
officer, we conclude that the court did not clearly err in
finding that Smith violated the terms of release. Further, in
light of the statutory requirement that release be revoked when
the defendant possesses a controlled substance, see 18 U.S.C.A.
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§ 3583(g)(1) (West Supp. 2011), revocation of Smith’s supervised
release was not an abuse of discretion.
Smith also contends that his twenty-one-month sentence
is unreasonable. A sentence imposed following revocation of
supervised release will be affirmed if it is within the
applicable statutory maximum and is not plainly unreasonable.
United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir 2006).
Smith’s sentence is below the statutory maximum of twenty-four
months. See 18 U.S.C.A. § 3583(e)(3). Further, the sentence is
procedurally reasonable: the district court considered both the
Chapter 7 policy statements and the 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2011) factors that it was permitted to consider.
See Crudup, 461 F.3d at 438-40. 1 Finally, the sentence is
1
Smith was found to have committed a Grade A supervised
release violation. His criminal history category was II, and
his recommended Guidelines range was 15-21 months. See U.S.
Sentencing Guidelines Manual § 7B1.4(a)(1), p.s. (2010). In his
supplemental brief, Smith claims that he should have been found
to have committed a Grade B — not a Grade A — violation of
release. He is incorrect. Under the Guidelines, his possession
of a significant quantity of individually wrapped packages of
crack cocaine qualifies as a Grade A violation. See USSG
§ 7B1.1(a)(1)(A)(ii). Additionally, it is immaterial for
purposes of supervised release revocation that Smith was not
convicted of the drug offenses alleged in the petition seeking
revocation of release. See USSG § 7B1.1, comment. (n.1); United
States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991).
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substantively reasonable, for the court adequately explained its
reasons for imposing the sentence. See id. at 440. 2
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm. 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 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 his 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
2
Our review of the record discloses that the district court
did not, as Smith argues in his supplemental brief, primarily
base the selected sentence on a person having been shot in
connection with Smith’s original firearms offense. Rather, the
sentence was based upon such factors as the destructive impact
of Smith’s drug trafficking on his community and other aspects
of his criminal past, including his having breached the trust of
the court by violating the terms of release after the court gave
him a lenient sentence for the firearms offense.
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