United States v. Ferguson, 4th Cir. (2002)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOHN FERGUSON,
Defendant-Appellant.
No. 02-4219
Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
Irene M. Keeley, Chief District Judge.
(CR-93-66)
Submitted: July 26, 2002
Decided: August 8, 2002
Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
David H. Wilmoth, DAVID H. WILMOTH, L.C., Elkins, West Virginia, for Appellant. Sherry L. Muncy, Assistant United States Attorney, Clarksburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
UNITED STATES v. FERGUSON
OPINION
PER CURIAM:
John Ferguson appeals the district courts order revoking his term
of supervised release and sentencing him to eleven months of imprisonment. Fergusons counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967). Although Ferguson was
informed of his right to file a supplemental brief, he has not done so.
His attorney raises two issues.
First, Ferguson challenges the district courts authority to impose
a sentence upon revocation of his supervised release. We review for
abuse of discretion. United States v. Davis, 53 F.3d 638, 642-43 (4th
Cir. 1995). We find this argument to be without merit. See Johnson
v. United States, 529 U.S. 694, 713 (2000).
Ferguson next contends the district court was required to give him
credit for time previously served on post-release supervision when it
sentenced him. At the time of Fergusons conviction, 18 U.S.C.
3583(e)(3) (1988 & Supp. V.) authorized the court to revoke a term
of supervised release and require the person to serve in prison all or
part of the term of supervised release without credit for time previously served on post-release supervision upon finding a violation.
Thus, the district court had the authority under 3583 to sentence
Ferguson to a period of incarceration without regard to the amount of
time Ferguson previously served on post-release supervision.
Pursuant to Anders, this court has reviewed the record for reversible error and found none. We therefore affirm the district courts
revocation of Fergusons supervised release and the ensuing sentence.
We deny counsels 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 petition would
be frivolous, then counsel may move this court for leave to withdraw
from representation. Counsels 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
