United States v. Whitlock , 195 F. App'x 162 ( 2006 )


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  •                              UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 06-4164
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    SARAH ARLENE WHITLOCK,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Greenville.    Margaret B. Seymour, District
    Judge. (6:01-cr-00705-MBS)
    Submitted:   July 28, 2006                 Decided:   August 23, 2006
    Before KING, GREGORY, and DUNCAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Allen B. Burnside, Assistant Federal Public Defender, Columbia,
    South Carolina, for Appellant. David Calhoun Stephens, Assistant
    United States Attorney, Greenville, South Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    PER CURIAM:
    Sarah Arlene Whitlock appeals a district court judgment
    revoking her supervised release and sentencing her to thirteen
    months’ imprisonment. On appeal, Whitlock’s attorney filed a brief
    pursuant to Anders v. California, 
    386 U.S. 738
     (1967), claiming
    there are no meritorious issues on appeal, but raising the question
    of whether the district court consulted 
    18 U.S.C. § 3553
    (a) (2000)
    before    imposing      sentence.       Whitlock     filed   a   brief   claiming
    ineffective assistance of counsel. She also claimed the prosecutor
    misrepresented information in the presentence investigation report.
    Finding no error, we affirm.
    We review the district court’s decision to revoke a
    defendant’s supervised release for an abuse of discretion.                 United
    States v. Copley, 
    978 F.2d 829
    , 831 (4th Cir. 1992).               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 2000 & Supp. 2006).              We find the court did not
    abuse its discretion in revoking supervised release. Before United
    States v. Booker, 
    543 U.S. 220
     (2005), we reviewed a sentence
    imposed    upon       revocation   of   supervised     release    for    abuse   of
    discretion.     United States v. Davis, 
    53 F.3d 638
    , 642-43 (4th Cir.
    1995).    This court has not yet decided whether, after Booker, the
    proper standard is reasonableness.              However, Whitlock’s revocation
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    sentence was within the advisory Chapter 7 revocation range of 7-13
    months and can be affirmed under either standard.
    With respect to Whitlock’s issues, a claim of ineffective
    assistance of counsel must first be raised in the district court in
    a   motion   under   
    28 U.S.C. § 2255
         (2000),   unless   the   record
    conclusively establishes ineffective assistance.             United States v.
    Richardson, 
    195 F.3d 192
    , 198 (4th Cir. 1999); United States v.
    King, 
    119 F.3d 290
    , 295 (4th Cir. 1997). Because the record does
    not conclusively show counsel was ineffective, we decline to
    address this claim at this time.               Whitlock failed to show error
    with respect to the other claims.
    Pursuant to Anders, we have examined the entire record
    and find no meritorious issues for appeal.            Accordingly, we affirm
    Whitlock’s judgment.       This court requires counsel to inform his
    client, in writing, of her right to petition the Supreme Court of
    the United States for further review. If the client requests a
    petition be filed, but counsel believes 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 the client.             We deny Whitlock’s motion
    to expedite the appeal as moot.            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
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