United States of America v. Dwayne Simmons

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4701
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DWAYNE SIMMONS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Raymond A. Jackson,
District Judge. (4:08-cr-00018-RAJ-1)
Submitted: February 25, 2010 Decided: March 17, 2010
Before GREGORY and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark H. Bodner, Fairfax, Virginia, for Appellant. Dana James
Boente, Assistant United States Attorney, Alexandria, Virginia,
Scott W. Putney, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dwayne Simmons appeals a district court’s order
finding he violated the conditions of probation and modifying
said conditions. Simmons’ counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating there were no
meritorious arguments for review, but raising for the court’s
consideration whether the district court erred in finding
Simmons’ violations were intentional and whether the court erred
in imposing a six-month period of home confinement. Simmons was
notified of the opportunity to file a pro se supplemental brief,
but did not do so. The Government did not file a brief.
If a defendant violates a condition of probation, the
district court, after a hearing, may modify the terms of
probation at any point prior to the expiration or termination of
probation. 18 U.S.C. § 3565(a) (2006); 18 U.S.C.A. § 3563(c)
(West 2000 & Supp. 2009). The modifications are reviewed for
abuse of discretion. See United States v. Johnson, 892 F.2d
369, 371-72 (4th Cir. 1989). The court must be reasonably
satisfied that the defendant violated a condition of probation.
United States v. Cates, 402 F.2d 473, 474 (4th Cir. 1968).
Under 18 U.S.C.A. § 3563(b), a court may, among other
modifications, order a defendant to make restitution, to be
employed and to remain at home except for work hours and that

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such compliance may be monitored with an electronic monitoring
device.
We find no error in the district court’s finding that
Simmons violated his probation. We also find the court did not
abuse its discretion in modifying the conditions of probation.
In accordance with Anders, we have reviewed the entire record
for any meritorious issues and have found none. Therefore, we
affirm the district court’s order. We deny without prejudice
counsel’s motion to withdraw. This court requires counsel
inform Simmons, in writing, of the right to petition the Supreme
Court of the United States for further review. If Simmons
requests that a petition be filed, but counsel believes such a
petition would be frivolous, then counsel may renew his motion
for leave to withdraw from representation. Counsel’s motion
must state that a copy thereof was served on Simmons. 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

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