UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4767

DAWN DEMPSY SUTTON,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

N. Carlton Tilley, Jr., Chief District Judge.

(CR-90-218-G)

Submitted: March 5, 2004

Decided: March 23, 2004

Before LUTTIG, WILLIAMS, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

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

Assistant Federal Public Defender, Greensboro, North Carolina, for

Appellant. Angela Hewlett Miller, OFFICE OF THE UNITED

STATES ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Dawn Dempsy Sutton appeals from the revocation of his supervised release. At the revocation hearing, Sutton admitted the violations. The district court departed from the recommended guideline

range of twenty-one to twenty-four months and imposed a twelvemonth term of imprisonment, to be followed by thirty months of

supervised release. Sutton timely appeals. On appeal, his attorney has

filed an Anders* brief, raising two issues: (1) whether the district

court erred by originally imposing a five-year term of supervised

release and (2) whether the district court erred by imposing an additional term of supervised release upon revocation. Sutton has filed a

pro se supplemental brief, further discussing the issues raised by

counsel. 

Sutton first argues that the supervised release term in his original

sentence was an erroneous application of the applicable statutes and

guidelines. However, this question is not properly before us. In an

appeal from the revocation of supervised release, we lack jurisdiction

to examine the sentencing proceeding in which the term of supervised

release was imposed. See United States v. Johnson, 138 F.3d 115,

117-18 (4th Cir. 1998). If Sutton found the supervised release term to

be objectionable, he should have raised this claim in his direct appeal.

Consequently, we decline to review the merits of this challenge. 

Sutton next contends that the district court lacked the authority to

impose another term of supervised release upon the revocation of his

original term. Although 18 U.S.C. § 3583(h) (2000) explicitly permits

the imposition of such a term, Sutton asserts that the 1994 amendments to § 3583(h) should not apply to him, as his original offense

was committed in 1990. While the Supreme Court agreed that

§ 3583(h) does not apply retroactively in Johnson v. United States,

529 U.S. 694 (2000), the Court held that imposition of supervised

release following reimprisonment was authorized by the former 18

U.S.C. § 3583(e) (1994). Johnson, 529 U.S. at 702-03, 713. Because

*Anders v. California, 386 U.S. 738 (1967). 

2 UNITED STATES v. SUTTON
the statute in effect at the time of Sutton’s offenses permitted a sentencing court, upon the revocation of supervised release, to impose a

sentence of imprisonment followed by an additional term of supervised release, the district court’s sentence in this case was proper. 

In accordance with the requirements of Anders, we have reviewed

the entire record in this case and have found no meritorious issues for

appeal. Accordingly, we affirm Sutton’s conviction and sentence. We

deny Sutton’s motion to stay the appeal. 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 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

UNITED STATES v. SUTTON 3