UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4134

THOMAS JUNIOR SHIELDS,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

Frank W. Bullock, Jr., Chief District Judge.

(CR-89-26-D)

Submitted: September 28, 1999

Decided: October 14, 1999

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

BUTZNER, Senior District Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Louis C. Allen III, Federal Public Defender, William S. Trivette,

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Walter C. Holton, Jr., United States Attorney, Michael F.

Joseph, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Thomas Junior Shields appeals the district court's revocation of his

supervised release term and its imposition of a twenty-four-month

prison sentence, based upon Shields' violation of the terms and conditions of his supervised release. Shields' attorney has filed a brief in

accordance with Anders v. California, 386 U.S. 738 (1967), claiming

that the district court abused its discretion by revoking Shields' supervised release and that the twenty-four-month sentence was plainly

unreasonable, but concluding that there are no meritorious issues for

appeal. Shields filed a supplemental pro se brief arguing that the district court erred by admitting hearsay evidence at the revocation hearing and that the district court abused its discretion by revoking his

supervised release for simply failing a urine test. Finding no error, we

affirm.

Shields was convicted in 1989 of being a felon in possession of a

firearm, 18 U.S.C. § 922(g) (1994), and sentenced to ten years of

imprisonment, followed by three years of supervised release. Shields

completed his term of imprisonment and began his term of supervised

release on February 12, 1998.

After Shields was found in possession of a firearm and tested positive for cocaine use, the district court held a supervised release revocation hearing. Shields admitted that he tested positive for cocaine on

two occasions but denied possession of the firearm. The government

presented the testimony of Harnett County Deputy Sheriff Parshall

who stated that on September 7, 1998, he stopped a car in which

Shields was one of four occupants. Over Shields' objection, Parshall

testified that one of the other passengers in the car, Ms. Jamie Carroll,

told him that Shields had handed her a P-89 Ruger and told her to "sit

on it."* Carroll refused and Shields threw the weapon on the floor-

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*Carroll was not called as a witness.

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board in front of her. The gun was found beneath the driver's seat.

Carroll also told Parshall that she had been at a party with Shields earlier in the evening and that she saw Shields "with the handgun all

night long and [he] was waving it around frantically at the party." The

government also presented the testimony of Lieutenant William C.

Wade, who testified as to statements made to him the following morning by Ms. Carroll which contained the same facts as the statements

made to Parshall.

Based on this evidence, the district court found that Shields had

violated his supervised release both by possessing the firearm and by

testing positive for cocaine use--both Grade B violations--with a

guideline range of twenty-one to twenty-seven months imprisonment.

The district court sentenced Shields to twenty-four months imprisonment, the statutory maximum. See 18 U.S.C.§ 3583(e)(3) (1994).

Shields appeals.

This court reviews the district court's decision to revoke a defendant's supervised release for an abuse of discretion. See United States

v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). Revocation of supervised release is mandatory if the defendant unlawfully possesses a

controlled substance or a firearm. See 18 U.S.C.A. § 3583(g) (West

1985 & Supp. 1999). The district court need only find a violation of

a condition of supervised release by a preponderance of the evidence.

See 18 U.S.C. § 3583(e)(3). Because the evidence was sufficient to

establish that Shields tested positive for a controlled substance and

possessed a firearm--either of which provided independent grounds

for revoking supervised release--we find no abuse of discretion in the

district court's decision to revoke his supervised release.

In his supplemental pro se brief, Shields argues, first, that the district court erred by allowing Parshall and Wade to testify regarding

statements made to them by Carroll. However, Fed. R. Evid.

1101(d)(3) explicitly provides that the Rules of Evidence do not apply

to miscellaneous proceedings such as probation revocation hearings.

Shields also claims that the district court has the discretion not to

revoke supervised release "when a defendant simply fails a drug test."

However, because the firearms possession provided an independent

basis for mandatory revocation of Shields' supervised release, this

claim is also without merit.

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Because Shields' sentence does not exceed the maximum statutory

limit established under 18 U.S.C.A. § 3583(e)(3), this court reviews

Shield's sentence only to determine if it is plainly unreasonable. See

18 U.S.C. § 3742(a)(4) (1994). Given the facts of this case and the

nature of Shields' conduct, we cannot say that the twenty-four-month

sentence imposed by the district court was plainly unreasonable.

Pursuant to Anders, this court has reviewed the record for potential

error and has found none. Therefore, we affirm the district court's

order revoking Shields' supervised release and imposing a twentyfour month sentence. We deny counsel's motion to withdraw at this

time. 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

again 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 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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