United States v. Sutton , 91 F. App'x 268 ( 2004 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4767
DAWN DEMPSY SUTTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Greensboro.
N. Carlton Tilley, Jr., Chief District Judge.
(CR-90-218-G)
Submitted: March 5, 2004
Decided: March 23, 2004
Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Louis C. Allen III, Federal Public Defender, William S. Trivette,
Assistant Federal Public Defender, Greensboro, North Carolina, for
Appellant. Angela Hewlett Miller, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SUTTON
OPINION
PER CURIAM:
Dawn Dempsy Sutton appeals from the revocation of his super-
vised release. At the revocation hearing, Sutton admitted the viola-
tions. The district court departed from the recommended guideline
range of twenty-one to twenty-four months and imposed a twelve-
month term of imprisonment, to be followed by thirty months of
supervised release. Sutton timely appeals. On appeal, his attorney has
filed an Anders* brief, raising two issues: (1) whether the district
court erred by originally imposing a five-year term of supervised
release and (2) whether the district court erred by imposing an addi-
tional term of supervised release upon revocation. Sutton has filed a
pro se supplemental brief, further discussing the issues raised by
counsel.
Sutton first argues that the supervised release term in his original
sentence was an erroneous application of the applicable statutes and
guidelines. However, this question is not properly before us. In an
appeal from the revocation of supervised release, we lack jurisdiction
to examine the sentencing proceeding in which the term of supervised
release was imposed. See United States v. Johnson, 138 F.3d 115,
117-18 (4th Cir. 1998). If Sutton found the supervised release term to
be objectionable, he should have raised this claim in his direct appeal.
Consequently, we decline to review the merits of this challenge.
Sutton next contends that the district court lacked the authority to
impose another term of supervised release upon the revocation of his
original term. Although 18 U.S.C. § 3583(h) (2000) explicitly permits
the imposition of such a term, Sutton asserts that the 1994 amend-
ments to § 3583(h) should not apply to him, as his original offense
was committed in 1990. While the Supreme Court agreed that
§ 3583(h) does not apply retroactively in Johnson v. United States,
529 U.S. 694 (2000), the Court held that imposition of supervised
release following reimprisonment was authorized by the former 18
U.S.C. § 3583(e) (1994). Johnson, 529 U.S. at 702-03, 713. Because
*Anders v. California, 386 U.S. 738 (1967).
UNITED STATES v. SUTTON 3
the statute in effect at the time of Sutton’s offenses permitted a sen-
tencing court, upon the revocation of supervised release, to impose a
sentence of imprisonment followed by an additional term of super-
vised release, the district court’s sentence in this case was proper.
In accordance with the requirements of Anders, we have reviewed
the entire record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Sutton’s conviction and sentence. We
deny Sutton’s motion to stay the appeal. This court requires that coun-
sel 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 with-
draw 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