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    United States v. Polston, 4th Cir. (2007)

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    Kipp Polston appealed the district court's decision to revoke his supervised release and sentence him to 11 months in prison. Polston's attorney argued there was no basis for appeal but suggested the district court erred by not allowing Polston to respond to the government's argument for revocation. The appellate court affirmed the district court's decision, finding that Polston admitted to violating the terms of his release, the sentence was within guidelines, and that Polston and his attorney were given opportunity to argue against revocation but the court rejected their arguments.

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    United States v. Polston, 4th Cir. (2007)

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    Kipp Polston appealed the district court's decision to revoke his supervised release and sentence him to 11 months in prison. Polston's attorney argued there was no basis for appeal but suggested the district court erred by not allowing Polston to respond to the government's argument for revocation. The appellate court affirmed the district court's decision, finding that Polston admitted to violating the terms of his release, the sentence was within guidelines, and that Polston and his attorney were given opportunity to argue against revocation but the court rejected their arguments.

    Original Description:

    Filed: 2007-09-13 Precedential Status: Non-Precedential Docket: 07-4199

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    Kipp Polston appealed the district court's decision to revoke his supervised release and sentence him to 11 months in prison. Polston's attorney argued there was no basis for appeal but suggested the district court erred by not allowing Polston to respond to the government's argument for revocation. The appellate court affirmed the district court's decision, finding that Polston admitted to violating the terms of his release, the sentence was within guidelines, and that Polston and his attorney were given opportunity to argue against revocation but the court rejected their arguments.

    Copyright:

    Public Domain
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    Download as pdf
    57 views4 pages

    United States v. Polston, 4th Cir. (2007)

    Uploaded by

    Scribd Government Docs
    Kipp Polston appealed the district court's decision to revoke his supervised release and sentence him to 11 months in prison. Polston's attorney argued there was no basis for appeal but suggested the district court erred by not allowing Polston to respond to the government's argument for revocation. The appellate court affirmed the district court's decision, finding that Polston admitted to violating the terms of his release, the sentence was within guidelines, and that Polston and his attorney were given opportunity to argue against revocation but the court rejected their arguments.

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    of 4

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT

    No. 07-4199

    UNITED STATES OF AMERICA,


    Plaintiff - Appellee,
    versus
    KIPP POLSTON,
    Defendant - Appellant.

    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
    Chief District Judge. (3:06-cr-00149)

    Submitted:

    September 11, 2007

    Decided:

    September 13, 2007

    Before WILKINSON, MOTZ, and TRAXLER, Circuit Judges.

    Affirmed by unpublished per curiam opinion.

    Steven Slawinski, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,


    INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray,
    OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina,
    for Appellee.

    Unpublished opinions are not binding precedent in this circuit.

    PER CURIAM:
    Kipp Polston appeals the district courts order revoking
    his supervised release and sentencing him to eleven months in
    prison.

    Polstons attorney has filed a brief pursuant to Anders

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


    meritorious grounds for appeal, but raising as a possible issue
    whether the district court plainly erred when it refused to allow
    Polston an opportunity to respond to the Governments argument in
    favor of supervised release revocation. Polston was advised of his
    right to file a pro se supplemental brief but has not done so.
    Government elected not to file a responding brief.

    The

    Finding no

    reversible error, we affirm.


    Under 18 U.S.C. 3583(e)(3) (2000), the district court
    may revoke a term of supervised release and require the defendant
    to serve in prison all or part of the term of supervised release
    authorized by statute for the offense that resulted in imposition
    of the term of supervised release without granting credit for time
    previously served on post-release supervision.
    district

    court's

    decision

    to

    revoke

    release for an abuse of discretion.

    We review the

    defendant's

    supervised

    See United States v. Davis,

    53 F.3d 638, 642-43 (4th Cir. 1995).


    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) (2000).

    - 2 -

    Polston admitted to the

    violations

    alleged

    in

    the

    petition

    to

    revoke

    his

    supervised

    release. Accordingly, we conclude the district court did not abuse


    its discretion in revoking his supervised release.

    Moreover,

    Polstons revocation sentence was within the advisory Chapter 7


    revocation range of five to eleven months.
    We also conclude that, contrary to Polstons attorneys
    assertions,

    both

    Polston

    and

    his

    attorney

    were

    given

    ample

    opportunity to argue to the district court why revocation of


    supervised release was unwarranted. We find the district court did
    not

    err

    in

    rejecting

    their

    arguments

    and

    revoking

    Polstons

    supervised release.
    In accordance with Anders, we have reviewed the entire
    record in this case and have found no meritorious issues.

    We

    therefore affirm the district courts revocation of Polstons


    supervised release and the resulting eleven-month sentence.

    This

    court requires that counsel inform Polston in writing of his right


    to petition the Supreme Court of the United States for further
    review.

    If Polston requests that a petition be filed, but counsel

    believes that such a petition would be frivolous, then counsel may


    file

    motion

    representation.

    with

    this

    court

    for

    leave

    to

    withdraw

    from

    Counsel's motion must state that a copy thereof

    was served on Polston.

    We dispense with oral argument because

    the facts and legal contentions are adequately presented in the

    - 3 -

    materials

    before

    the

    court

    and

    argument

    would

    not

    aid

    the

    decisional process.
    AFFIRMED

    - 4 -

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