UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4625

ANTHONY MERCHANT,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Newport News.

Henry C. Morgan, Jr., District Judge.

(CR-00-23)

Submitted: February 28, 2002

Decided: March 19, 2002

Before WILKINS, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Oldric J. Labell, Jr., Newport News, Virginia, for Appellant. Paul J.

McNulty, United States Attorney, Janet S. Reincke, Assistant United

States Attorney, Norfolk, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Anthony Merchant appeals the revocation of his supervised release

term and the district court’s imposition of a twenty-four month

imprisonment sentence. On appeal, Merchant argues that the court

erred in denying his motion to proceed pro se, denying his motion for

a continuance, and that his sentence should be vacated and remanded

because the supervised release violation worksheet contained an error.

Finding no error, we affirm. 

Merchant first argues that the court erred in denying his motion to

proceed pro se with stand by counsel appointed. We review the trial

court’s denial of a defendant’s request to represent himself for an

abuse of discretion. Bassette v. Thompson, 915 F.2d 932, 941-42 (4th

Cir. 1990). We find that Merchant was able to present the defense

strategy he believed was crucial to his case, which was the sole reason

upon which his motion was based. Therefore the court did not abuse

its discretion in denying the motion. 

Merchant argues that he was denied due process because the denial

of the continuance deprived him of notice of the charges and information to be used in sentencing him. Merchant contends that he did not

receive the supervised release violation worksheet until the beginning

of the revocation hearing. Merchant’s counsel on appeal also argues

that trial counsel’s motion for a continuance may also have been

based upon late receipt of the addendum to the petition on supervised

release. We review the district court’s denial of a motion for a continuance for abuse of discretion by the court and prejudice to the defendant. United States v. Bakker, 925 F.2d 728, 735 (4th Cir. 1991). We

find that the record demonstrates that the motion for a continuance

was based only upon receipt on the day of the hearing of the supervised release violation worksheet. Further, no prejudice is evidenced

in the record by counsel’s tardy receipt of the worksheet. The Chapter

7 policy statements of the Sentencing Guidelines are non-binding,

advisory guides in revocation proceedings. United States v. Davis, 53

F.3d 638, 642 (4th Cir. 1995). Because the policy statements are advisory only, we find that the court did not abuse its discretion in denying the motion for continuance based upon defense counsel receiving

2 UNITED STATES v. MERCHANT
the worksheet on the day of the hearing. Even considering that there

was a mistake on the worksheet, which may have been discovered if

counsel had more time to review the worksheet, we find that based

on the record, Merchant suffered no prejudice. 

Finally, Merchant argues for the first time on appeal that the supervised release violation worksheet incorrectly assigned him a Class B

violation for the Ohio forgery conviction, which Merchant states is

classified in Ohio as a Class 5 felony under Ohio Rev. Code Ann.

§ 2913.31A3 (West 2002), and therefore the forgery violation should

have been classified as a Class C felony. With the correction, the sentencing guidelines range would have been 8 to 14 months instead of

21 to 27 months, as stated in the worksheet. Merchant argues that the

court relied upon the sentencing guidelines range in imposing the

twenty-four month sentence, and that to remedy the error, his sentence should be vacated and remanded to the court for re-sentencing.

The Government does not dispute that the Ohio forgery felony

grade was incorrectly reported. Because Merchant did not challenge

the content of the probation officer’s worksheet at the hearing, the

claim is reviewed for plain error. United States v. Olano, 507 U.S.

725, 732-37 (1993); United States v. Grubb, 11 F.3d 426, 440 (4th

Cir. 1993). Even though the worksheet contained an error, it is clear

from the record that Merchant was not prejudiced by it. Merchant

asked for a more structured continued period of supervised release,

but the court rejected the request. The record shows that the court’s

decision was based on its belief that there were numerous violations

and that the court did not believe that Merchant would adhere to any

conditions of supervised release were it to be reimposed. There is

nothing in the record suggesting that the court believed it lacked

authority to grant Merchant’s request or to sentence him to a shorter

term of imprisonment. 

Accordingly, we affirm the sentence imposed by the district court.

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

UNITED STATES v. MERCHANT 3