UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4742

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

SAMUEL ALVIN THOMPSON, a/k/a Supreme, a/k/a Heat Mizer,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Frank D. Whitney,

District Judge. (3:98-cr-00076-FDW)

Submitted: July 31, 2008 Decided: October 21, 2008

Before WILKINSON, TRAXLER, and AGEE, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Janna D. Allison, JANNA D. ALLISON, PLLC, Waynesville, North

Carolina, for Appellant. Douglas Scott Broyles, Michael E. Savage,

Assistant United States Attorneys, Charlotte, North Carolina; Amy

Elizabeth Ray, Assistant United States Attorney, Asheville, North

Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Samuel Alvin Thompson appeals the district court’s

judgment revoking his supervised release and sentencing him to

sixty months in prison, a sentence within the applicable range

based on the non-binding federal sentencing guidelines policy

statement. Thompson’s counsel filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there are no

meritorious issues for appeal, but questioning whether the district

court erred by revoking Thompson’s supervised release and imposing

a prison sentence based on charges that were subsequently dropped.

Thompson’s pro se supplemental brief also challenges the revocation

of supervised release and the sentence. 

A decision to revoke a defendant’s supervised release is

reviewed for abuse of discretion. United States v. Pregent, 190

F.3d 279, 282 (4th Cir. 1999). 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.

2008). We review for clear error factual determinations underlying

the conclusion that a violation occurred. United States v.

Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).

The district court found that Thompson violated the terms

of his supervised release by committing another crime; namely,

possession of cocaine with the intent to sell and deliver.

Thompson argues that the evidence was insufficient to support this

finding because the state drug charges were subsequently dismissed.
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Pursuant to § 3583(e)(3), the district court may revoke

a defendant’s supervised release “if it finds by a preponderance of

the evidence the person violated a condition of supervised

release.” Because the standard of proof is less than that required

for a criminal conviction, the district court may find that the

defendant has violated a condition of his supervised release based

on its own findings of new criminal conduct, even if the defendant

is acquitted on criminal charges arising from the same conduct, or

if the charges against him are dropped. United States v.

Stephenson, 928 F.2d 728, 731 (6th Cir. 1991). 

The Government presented evidence at the supervised

release revocation hearing that, while Thompson was serving his

supervised release term, a confidential informant made a controlled

purchase of crack cocaine from Thompson. Authorities subsequently

executed a search warrant of Thompson’s motel room and found a

quantity of crack consistent with distribution and other indicia of

drug trafficking. Accordingly, we find that the district court did

not clearly err by finding that a preponderance of the evidence

showed that Thompson had committed a crime while on supervised

release and that the court did not abuse its discretion in revoking

Thompson’s supervised release.

Next, Thompson argues that the sentence imposed is

plainly unreasonable. We will affirm a sentence imposed following

revocation of supervised release if it is within the applicable

statutory limits and is not plainly unreasonable. United States v.

Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006), cert. denied,
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127 S. Ct. 1813 (2007). The sentence first must be assessed for

reasonableness, “follow[ing] generally the procedural and

substantive considerations that we employ in our review of original

sentences, . . . with some necessary modifications to take into

account the unique nature of supervised release revocation

sentences.” Id. at 438-39; see United States v. Finley, ___ F.3d

___, ___, 2008 WL 2574457, at *5 (4th Cir. June 30, 2008) (No. 07-

4690) (“In applying the ‘plainly unreasonable’ standard, we first

determine, using the instructions given in Gall [v. United States,

128 S. Ct. 586, 597 (2007)], whether a sentence is

‘unreasonable.’”). If we find the sentence to be reasonable, we

affirm. Crudup, 461 F.3d at 439. Only if a sentence is found

procedurally or substantively unreasonable will this Court “decide

whether the sentence is plainly unreasonable.” Id.; see Finley,

___ F.3d at ___, 2008 WL 2574457, at *5. Although the district

court must consider the Chapter 7 policy statements in the federal

sentencing guidelines and the requirements of 18 U.S.C.A.

§§ 3553(a), 3583 (West 2000 & Supp. 2008), “the [district] court

ultimately has broad discretion to revoke its previous sentence and

impose a term of imprisonment up to the statutory maximum.”

Crudup, 461 F.3d at 439 (internal quotation marks and citations

omitted). Applying these standards, we have thoroughly reviewed

Thompson’s sentence and conclude that it is not plainly

unreasonable. Gall, 128 S. Ct at 597; see Finley, ___ F.3d at ___,

2008 WL 2574457, at *9.
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In accordance with Anders, we have reviewed the record in

this case and have found no meritorious issues for appeal. We

therefore affirm the judgment revoking Thompson’s supervised

release and imposing a sixty-month term of imprisonment. This

court requires that counsel inform Thompson, in writing, of the

right to petition the Supreme Court of the United States for

further review. If Thompson 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

representation. Counsel’s motion must state that a copy thereof

was served on Thompson. 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