United States v. McCrae ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 98-4197
SAMUEL MCCRAE,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-91-261-D)
Submitted: August 11, 1998
Decided: September 1, 1998
Before MURNAGHAN, NIEMEYER, and WILLIAMS,
Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Thomas N. Cochran, Assistant Federal Public Defender, Greensboro,
North Carolina, for Appellant. Walter C. Holton, Jr., United States
Attorney, Lisa B. Boggs, Assistant United States Attorney, Greens-
boro, North Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Samuel McCrae pled guilty to breaking into a post office in viola-
tion of 18 U.S.C.A. § 2115 (West Supp. 1998). The district court
imposed a sentence of thirty months imprisonment, thirty-six months
supervised release, restitution, and a special assessment. After serving
his sentence, McCrae was released on supervision. Because McCrae
violated the conditions of his supervised release, the district court
revoked his supervised release and sentenced him to twenty-four
months imprisonment to run consecutively to the state sentence he
was then serving. McCrae noted a timely appeal and his attorney filed
a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967),
in which he represents that there are no arguable issues of merit in
this appeal. Nonetheless, counsel presented this court with one
nascent issue. The time for filing a supplemental brief has passed and
McCrae has not responded. Because we find the claim raised by coun-
sel to be without merit and can discern no other error in the record
on appeal, we affirm McCrae's conviction and sentence.
McCrae contends that the district court erred by ordering that his
sentence for violating his supervised release conditions run consecu-
tively, instead of concurrently, to the state sentence, which McCrae
was serving at the time of his supervised release revocation hearing.
At the revocation hearing, McCrae requested a sentence concurrent
with the state sentence he was then serving. However, the district
court imposed a consecutive sentence. While U.S. Sentencing
Guidelines Manual § 7B1.3(f), p.s. (1997), calls for a term of impris-
onment imposed upon revocation of supervised release to be consecu-
tive to any sentence the defendant is serving, the Chapter 7 policy
statements are not binding on the district court. See United States v.
Davis, 53 F.3d 638, 641-42 (4th Cir. 1995). The sentencing court
noted that the only discretion it had in this case was whether or not
the federal sentence should run concurrently or consecutively to
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McCrae's state sentence. The court found "that there [was] no suffi-
cient cause [] shown to do other than run the sentence consecutive."
We find that the district court did not abuse its discretion.
As required by Anders, we have examined the entire record and
find no other meritorious issues for appeal. Accordingly, we affirm
McCrae's conviction and sentence. We deny defense counsel's
motion to withdraw. 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 represen-
tation. 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
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