United States v. Constance Serene Evans, 103 F.3d 121, 4th Cir. (1996)
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Scribd Government DocsUnited States v. Constance Serene Evans, 103 F.3d 121, 4th Cir. (1996)
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Scribd Government Docs103 F.
3d 121
NOTICE: Fourth Circuit Local Rule 36(c) states that citation
of unpublished dispositions is disfavored except for establishing
res judicata, estoppel, or the law of the case and requires
service of copies of cited unpublished dispositions of the Fourth
Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Constance Serene EVANS, Defendant-Appellant.
No. 96-4100.
United States Court of Appeals, Fourth Circuit.
Submitted Oct. 29, 1996.
Decided Nov. 19, 1996.
William E. Martin, Federal Public Defender, Eric D. Placke, Assistant
Federal Public Defender, Greensboro, North Carolina, for Appellant.
Walter C. Holton, Jr., United States Attorney, Scott P. Mebane, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.
M.D.N.C.
AFFIRMED.
Before MURNAGHAN, WILLIAMS, and MICHAEL, Circuit Judges.
OPINION
PER CURIAM:
In 1992, Constance Serene Evans pled guilty to one count of bank
embezzlement, in violation of 18 U.S.C.A. 656 (West Supp.1996). She had
embezzled $23,000 from the bank where she worked as a teller. After a brief
confinement, Evans commenced a five-year period of supervised release and
began to pay $200 per month toward $23,000 in restitution imposed by the
district court.
Since January 1994, the district court has held four hearings monitoring Evans's
compliance with the terms of her supervised release, specifically over her
failure to make timely payments, file timely monthly reports, and keep the
probation office informed of her employment. The district court found the
violations as alleged, but three times allowed Evans to remedy her failures. At
the fourth hearing, the district court found that Evans willfully failed to comply
with the terms of her supervised release, by failing to make timely payment
toward restitution, failing to appear at a scheduled meeting with the probation
office, and applying for consumer credit without prior approval from the
probation office. Evans was sentenced to nine months imprisonment, with the
entire amount of restitution due and owing. She appeals that revocation.
We review the district court's revocation of supervised release for abuse of
discretion. United States v. Stephenson, 928 F.2d 728, 731 (6th Cir.1991); see
United States v. Copley, 978 F.2d 829, 831 (4th Cir.1992) (applying the
standard). Evans first challenges the district court's restitution order in the
underlying judgment, arguing that the court improperly delegated the authority
to establish a payment schedule to the probation officer in violation of United
States v. Johnson, 48 F.3d 806, 809 (4th Cir.1995). We hold that this claim is
not properly before this court.
An unappealed sentence or a sentence upheld on appeal is presumed valid until
vacated under 28 U.S.C. 2255 (1994), amended by Antiterrorism and
Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, the
exclusive remedy for challenging the validity of a sentence. United States v.
Almand, 992 F.2d 316, 317-18 (11th Cir.1993). Evans did not appeal her
conviction and sentence, nor has she filed a motion under 2255. She has
therefore improperly raised this claim on this appeal.
Evans next argues that the district court erred in finding that she willfully failed
to pay the restitution, when in fact she was unable to pay. See Bearden v.
Georgia, 461 U.S. 660, 672-73 (1983). But the record is clear that the district
court's decision was based on the monthly financial reports Evans submitted to
the probation office and Evans's own testimony. Counsel for Evans declined to
argue that Evans could not make the payments. Further, supervised release was
revoked for reasons other than the financial one. The district court's actions
were in full compliance with Bearden.
Accordingly, we find that the district court did not abuse its discretion in
revoking Evans's supervised release, and we affirm that decision. 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
