United States v. Terry , 178 F. App'x 232 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4426
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GARY IVAN TERRY,
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-03-299)
Submitted: March 24, 2006 Decided: April 28, 2006
Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Lisa S. Costner, Winston-Salem, North Carolina, for Appellant.
Anna Mills Wagoner, United States Attorney, Lisa Blue Boggs,
Assistant United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Gary Ivan Terry appeals from the district court’s order
revoking his supervised release and reimposing a thirty-two-month
term of supervised release, with the condition that he serve four
months in a community corrections center. Terry contends that the
district court erred in finding that he violated the terms of his
supervision. We affirm.
We review the district court’s decision to revoke a
defendant’s supervised release for 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. 2005). Here, the district court
found that Terry violated the terms of his supervised release by
failing to report for scheduled appointments with his probation
officer and failing to work regularly, as directed by the terms of
his supervision and explained by his probation officer.
While Terry asserted that he was not informed of a number
of appointments, and he was not aware that he was required to work
thirty-five to forty hours per week, the district court found the
testimony of Terry’s probation officer and his former employer
credible. The district court apparently weighed the contradictory
testimony and decided to credit the probation officer’s version.
It is not the province of this court to second-guess the
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credibility determinations of the factfinder. United States v.
Saunders, 886 F.2d 56, 60 (4th Cir. 1989). In light of the
district court’s findings that Terry violated his supervised
release, we find no abuse of discretion by the court in revoking
Terry’s supervised release and imposing an additional term of
supervision. See United States v. Davis, 53 F.3d 638, 642-43 (4th
Cir. 1995); Copley, 978 F.2d at 831 (finding no abuse of discretion
in revocation where preponderance of evidence supported finding of
violation). Accordingly, we affirm the district court’s revocation
of Terry’s supervised release.
Terry has also filed a motion requesting that this court
reconsider a prior order denying his motion for substitution of
counsel. Principally, he complains that, despite his requests, his
attorney refused to raise in this appeal issues concerning the
validity of his guilty plea entered in the United States District
Court for the Western District of Missouri to the underlying
criminal charges. Terry contends that his plea to the underlying
offense was not knowing and voluntary and that it was taken by a
magistrate judge, rather than a district court judge, without his
consent, in violation of our holding in United States v. Osborne,
345 F.3d 281, 288 (4th Cir. 2003) (holding that, if parties
consent, magistrate judge may conduct plea hearings pursuant to
“additional duties” clause of 28 U.S.C. § 636(b)(3) (2000)).
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We conclude that Terry’s appointed counsel accurately assessed
that the issues he wanted her to raise on his behalf are wholly
lacking in merit. Contrary to Terry’s apparent view, this appeal
does not provide a forum in which he can mount a challenge to the
validity of his underlying criminal conviction. Rather, this
court’s jurisdiction is limited to review of the district court’s
order of June 23, 2004, revoking his supervised release. See
Preston Corp. v. Raese, 335 F.2d 827, 828 (4th Cir. 1964) (holding
that court of appeals has no authority to entertain appeal from
order entered by district court not within territorial jurisdiction
of court of appeals); 28 U.S.C. §§ 41, 1294 (2000) (noting that
appeals shall be taken to the court of appeals embracing the
geographic location of the district court); see also Fed. R. App.
P. 4(a) (stating time in which appeal must be noted); Browder v.
Director, Dep’t of Corr., 434 U.S. 257, 264 (1978) (quoting United
States v. Robinson, 361 U.S. 220, 229 (1960), and providing that
appeal period is “mandatory and jurisdictional”).
Because there is no merit to the basis upon which Terry seeks
substitution of counsel, we deny his motion to reconsider the
denial of his motion for substitution. We deny as moot Terry’s
motion and supplemental motion for a stay of his sentence pending
appeal, and we deny his motion to stay proceedings in the district
court pending appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid the
decisional process.
AFFIRMED
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