United States v. Ward ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4877
CARL A. WARD,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Rebecca B. Smith, District Judge.
(CR-92-88-N)
Submitted: September 23, 1997
Decided: October 17, 1997
Before HALL, MURNAGHAN, and NIEMEYER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Stanley E. Sacks, SACKS & SACKS, Norfolk, Virginia, for Appel-
lant. Helen F. Fahey, United States Attorney, Robert E. Bradenham
II, Assistant United States Attorney, Norfolk, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Carl A. Ward appeals from the district court's order revoking his
supervised release and sentencing him to sixty months imprisonment.
Ward's counsel filed a formal brief pursuant to Anders v. California,
386 U.S. 738 (1967), in which he certified that there were no merito-
rious issues for appeal. Nonetheless, he presents one issue: whether
the district court erred in finding Ward guilty of violating the condi-
tions of his supervised release and sentencing him to sixty months
imprisonment. Ward also has filed a pro se supplemental brief raising
several issues. For the following reasons, we affirm.
Ward was convicted of conspiring to distribute in excess of five
kilograms of cocaine and in excess of fifty grams of crack cocaine in
violation of 21 U.S.C. § 846 (1994). His sentence included five years
of supervised release. Ward subsequently appeared before the district
court for a supervised release revocation hearing. The revocation peti-
tion alleged that during his term of supervised release, Ward commit-
ted numerous violations of his supervised release conditions and
failed to respond to substance abuse treatment for his drug addiction.
Specifically, the petition alleged, and Ward stipulated, that he had
violated the conditions of his supervised release by using marijuana
on four occasions, failing to satisfactorily participate in drug treat-
ment as directed by his probation officer, failing to report to his pro-
bation officer as directed, failing to submit a truthful monthly
supervision report to his probation officer, and failing to submit writ-
ten monthly reports as directed. The addendum to the petition alleged
that Ward had violated his supervised released conditions by commit-
ting a crime. At the revocation hearing, the court stated that it would
not consider the addendum "in any regard," and that the addendum
would not play any part in the court's decision. The court found that
Ward had violated the conditions of his supervised release. The court
revoked his supervised release and sentenced him to sixty months
imprisonment.
On appeal, Ward claims that in view of his reasons for not comply-
ing with the conditions of his supervised release, the court's finding
that he had violated those conditions was not supported by the evi-
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dence. At the revocation hearing, Ward testified that he did not appear
for counseling and drug testing as required because he could not find
employment and he knew he was going to be reported for violating
his supervised release conditions. In essence, he explained that he did
not willingly or voluntarily violate the conditions of his supervised
release but exercised poor judgment in failing to report as ordered
because of his fear of being charged with violating his supervised
release conditions. He further testified that although he tested positive
for marijuana use, he was not smoking marijuana"the whole time."
He stated that he guessed that it must have just"stayed in [his] sys-
tem" because "the test came up [positive] four times in less than 30
days."
The district court had only to find by a preponderance of the evi-
dence that Ward violated a condition of his supervised release. See 18
U.S.C. § 3583(e)(3) (1994). This court reviews that determination for
an abuse of discretion. See United States v. Copley, 978 F.2d 829, 831
(4th Cir. 1992). Ward admits that he violated the terms of his super-
vised release. Furthermore, § 3583(e)(3) provides that a defendant
whose term of supervised release is revoked may be required to serve
no more than five years imprisonment if the offense that resulted in
the term of supervised release is a class A felony, which includes
Ward's offense. See 18 U.S.C. § 3559(a)(1) (1994); 21 U.S.C. § 846(1994). Thus, the court sentenced him within the statutory range. Id.Ward's sentencing guideline range for violating his supervised
release conditions is four to ten months, reflecting a Grade C violation
and a Criminal History Category II. U.S. Sentencing Guidelines
Manual § 7B1.4, p.s. (1995). In his pro se supplemental brief, Ward
alleges that the court erred by not sentencing him within that range.
In connection with revocation of supervised release, however, the
guidelines are advisory only and the district court is not bound to
impose a sentence within the range. See United States v. Davis, 53
F.3d 638 (4th Cir. 1995). Moreover, a sentence of imprisonment
imposed upon revocation of supervised release which is above the
guideline range is not a departure, and therefore, the rules governing
guideline departures are inapplicable. See United States v. Denard, 24
F.3d 599, 602 (4th Cir. 1994). The district judge stated that she had
given Ward "so many breaks" and she was not going to give "him any
more breaks." Thus, the district court did not abuse its discretion in
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revoking Ward's supervised release and sentencing him to sixty
months imprisonment. See Copley, 978 F.2d at 831.
Ward next contends that the district court erred by bringing up
information irrelevant to his supervised release hearing, such as the
status and actions of his co-defendants, consisting of some family
members. He also claims that the court erred by assuming he was still
involved in the distribution of drugs. However, we find that the dis-
trict court did not abuse its discretion in sentencing Ward. See id.Lastly, Ward makes a conclusory claim that he was not credited with
the six-month reduction in his initial sentence. He does not provide
any information in support of this claim. Moreover, Ward has waived
this claim because he did not raise it below and our refusal to consider
the claim would not result in a miscarriage of justice. See National
Wildlife Fed'n v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988).
Accordingly, we affirm the district court's order revoking Ward's
supervised release and sentencing him to sixty months imprisonment.
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. Coun-
sel's motion must state that a copy thereof was served on his client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid in the decisional process.
AFFIRMED
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