affirming revocation judgment against assignment of error in classifying violation conduct because, on the relevant record, this court was “hard pressed to discern an abuse of discretion” in the district court’s decision to impose the statutory maximum sentence
How later courts described this case
- affirming revocation judgment against assignment of error in classifying violation conduct because, on the relevant record, this court was “hard pressed to discern an abuse of discretion” in the district court’s decision to impose the statutory maximum sentence
Written by the judges who cited it.
The opinion
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4966
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYMONT DAVID BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00136-TDS-1)
Argued: September 21, 2012 Decided: October 11, 2012
Before WILKINSON and DAVIS, Circuit Judges, and Max O. COGBURN,
Jr., District Judge, Western District of North Carolina, sitting
by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Gregory Davis, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Winston-Salem, North Carolina, for Appellant. Angela Hewlett
Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee. ON BRIEF: Louis C. Allen III, Federal
Public Defender, Greensboro, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Terri-Lei O'Malley,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
As revealed by a positive test of his urine, Appellant
Raymont David Brown possessed cocaine while on supervised
release for an earlier conviction for distribution of crack
cocaine. Upon its determination that Brown had thereby violated
the terms of supervised release, the district court classified
the violation as a Grade B violation rather than a less serious
Grade C violation, reasoning that Brown could have been
prosecuted for a recidivist drug offense under federal law. The
court sentenced Brown to 24 months in prison, the statutory
maximum revocation sentence. Despite our doubt as to the
correctness of the district court’s reasoning, because the
sentence was neither illegal nor plainly unreasonable, we
affirm.
I.
On July 17, 2010, Brown was released under supervision
after serving 96 months in prison for distribution of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1). J.A. 6. Less
than two months later, he tested positive for cocaine. Id. at
7, 21, 26. On May 18, 2011, Brown’s probation officer
petitioned the district court to revoke Brown’s supervised
release.1
1
J.A. 6–12. The probation officer asserted that Brown had
(Continued)
2
At a revocation hearing on August 17, 2011, the
district court found that Brown had violated the conditions of
his release by, inter alia, possessing cocaine. J.A. 26–27.
But the court reserved imposing a sentence because the parties
disputed whether Brown’s most severe violation--possession of
cocaine-- was a Grade B or a Grade C violation of supervised
release under the advisory sentencing guidelines.2
Brown faced a statutory maximum revocation sentence of
24 months in prison. See J.A. 10, 15; 18 U.S.C. § 3583(e)(3).
If the court classified his cocaine possession as a Grade B
violated the conditions of his supervised release in numerous
ways: (1) testing positive for cocaine; (2) being terminated
from a substance abuse treatment program; (3) being convicted in
state court of misdemeanor assault and misdemeanor breaking and
entering; and (4) failing to work regularly, report to his
probation officer, and submit monthly supervision reports. Id.
at 6–7. On August 10, 2011, the probation officer amended the
petition to allege another violation: a state conviction for
misdemeanor resisting a public officer. Id. at 13.
2
See J.A. 27, 34–37. The parties agreed that the other
violations were Grade C violations because they were based on
conduct punishable under state or federal law by imprisonment
for one year or less. U.S. Sentencing Guidelines Manual §
7B1.1(a) (2003). A Grade B violation is conduct punishable by
imprisonment for more than one year. Id. We employ the 2003
edition of the sentencing guidelines manual because that version
was in effect at the time of Brown’s original sentencing in
2004. See United States v. Smith, 354 F.3d 171, 174 (2d Cir.
2003) (“[S]upervised release sanctions are part of the
punishment for the original offense, and . . . . the sanctions
of the original offense remain applicable, despite subsequent
amendment.”) (citing Johnson v. United States, 529 U.S. 694,
700–02 (2000)).
3
violation, the advisory sentencing range was 21-24 months in
prison.3 If it was a Grade C violation, the advisory sentencing
range was only 8–14 months in prison. See U.S. Sentencing
Guidelines Manual § 7B1.4.
Brown argued that his possession was a Grade C
violation in light of United States v. Simmons, 649 F.3d 237
(4th Cir. 2011) (en banc).4 Brown argued that Simmons limited
the court to considering only the sentence he could receive for
simple possession--8-to-12 months’ imprisonment under North
Carolina law--not what a hypothetical “worst case” offender
could receive. See J.A. 30–34.
The Government conceded that Brown’s possession of
cocaine was a Grade C violation under North Carolina law, but
argued that it was a Grade B violation under federal law. See
J.A. 32. Specifically, the Government argued that Brown’s
possession was a violation of 21 U.S.C. § 844, punishable by up
3
Brown’s criminal history category at the original
sentencing was VI. J.A. 27. See also U.S. Sentencing Guidelines
Manual § 7B1.4 (revocation table) (2003) (providing for an
advisory sentencing range of 21–27 months); 18 U.S.C. §
3583(e)(3) (providing a statutory maximum sentence of 24 months
for Class C felonies).
4
See J.A. 30–34. Simmons, which was published the same day
as Brown’s revocation hearing, held that courts could not rely
on hypothetical enhancements or aggravating factors in
determining whether a defendant had been convicted of a felony
drug offense under the Controlled Substances Act. Simmons, 649
F.3d at 241, 243–50.
4
to two years in prison because Brown had a prior drug
conviction--the crime for which he was on supervised release.
Brown countered that the enhanced punishment was not
applicable because the Government had not charged him with a
separate offense or filed a notice of prior conviction pursuant
to 21 U.S.C. § 851.5 See J.A. 42.
On September 1, 2011, the district court found that
Brown’s possession was a Grade B violation, reasoning that
unpublished Fourth Circuit opinions had affirmed sentences that
treated drug possession as a Grade B violation; published and
unpublished decisions from other circuits had also affirmed such
sentences; and Brown’s prior conviction--the underlying offense
for which he was on supervised release--made his possession a
felony punishable by more than one year of imprisonment under §
844. J.A. 40, 50, 53–54. The court found that Brown had “shown
a total lack of respect and disregard for . . . the rules of
5
Section 851 provides that
No person who stands convicted of a[] [drug] offense .
. . shall be sentenced to increased punishment by
reason of one or more prior convictions, unless before
trial, or before entry of a plea of guilty, the United
States attorney files an information with the court
(and serves a copy of such information on the person
or counsel for the person) stating in writing the
previous convictions to be relied upon.
The parties agree that § 851 has no actual application in
revocation proceedings.
5
supervised release,” and imposed “the 24 months that’s available
as a sentence.” Id. at 65, 67.
II.
A.
“This Court reviews whether or not sentences imposed
upon revocation of supervised release are within the prescribed
statutory range and are not ‘plainly unreasonable.’” United
States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010).
To determine if a sentence is plainly unreasonable, we
apply a two-step inquiry. First, we determine whether the
sentence was “unreasonable at all,” see Thompson, 595 F.3d at
546, taking into account “procedural and substantive
considerations” and “the unique nature of supervised release
revocation sentences,” United States v. Crudup, 461 F.3d 433,
438–39 (4th Cir. 2006). A sentence is procedurally unreasonable
when the judge improperly calculates the advisory guidelines
sentence, fails to adequately explain the sentence after
considering the Sentencing Commission’s policy statements on
violations of supervised release, or fails to consider other
pertinent sentencing factors in 18 U.S.C. § 3553(a).6 See Gall v.
6
These statutory factors include the “characteristics of
the defendant,” the “nature and circumstances of the offense,”
and the need to “afford adequate deterrence to criminal
(Continued)
6
United States, 552 U.S. 38, 51 (2007); Thompson, 595 F.3d at
547; Crudup, 461 F.3d at 438–40. A sentence is substantively
unreasonable if the sentencing court fails to sufficiently state
a proper basis for its conclusion. See Crudup, 461 F.3d at 440.
If the sentence is procedurally or substantively
unreasonable, we proceed to the second step: determining whether
the sentence is “plainly unreasonable,” that is, “clear[ly]” or
“obvious[ly]” unreasonable. Crudup, 461 F.3d at 439 (emphasis
in original). A sentence is plainly unreasonable if it
contravenes “clearly settled” law. Thompson, 595 F.3d at 548.
A sentence is also plainly unreasonable if the appellant’s
objection would have been indefensible at sentencing because of
existing law but a supervening decision prior to appeal has
reversed that well-settled law.7
B.
Brown argues on appeal that his sentence is “clearly
unreasonable” because the district court abused its discretion
in classifying his cocaine possession as a Grade B violation.
conduct.” 18 U.S.C. §§ 3553(a), 3583(e).
7
See Thompson, 595 F.3d at 548 (citing United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005)). In Thompson, we
vacated the revocation sentence because the district court had
failed to provide any reasons for its sentence, and this failure
“contravened clear circuit precedent.” Id.
7
See Appellant’s Br. 7–10. He contends that, because the
Government cannot file a § 851 notice of prior conviction in a
revocation proceeding, drug possession during supervised release
should be treated as a misdemeanor and, thus, a Grade C
violation.8
The Government counters that this Court and others
have held that “a positive drug test by an individual on
supervised release constitutes a Grade B violation,” and the
notice requirement of § 851 does not apply to revocation
proceedings. Appellee’s Br. 12–16.
We cannot find that the district court’s imposition of
the maximum authorized sentence on this record was plainly
unreasonable. First, we have published no opinion on the proper
classification of drug possession as a violation of supervised
release; indeed, we have issued several unpublished per curiam
opinions (all predating our en banc decision in Simmons)
affirming revocation sentences that construed possession as a
8
See Appellant’s Br. 8 (“for a subsequent simple possession
offense to be eligible for an enhanced punishment, i.e., to be
punishable as a felony, the Controlled Substances Act requires
that a prosecutor charge the existence of the prior simple
possession conviction before trial, or before a guilty plea”)
(quoting Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2581–82
(2010)). See also id. at 7–10. Carachuri-Rosendo held that
“when a defendant has been convicted of a simple possession
offense that has not been enhanced based on the fact of a prior
conviction, he has not been ‘convicted’ under [the Immigration
and Nationality Act] of a ‘felony punishable’ as such ‘under the
Controlled Substances Act[.]’” 130 S. Ct. at 2589–90.
8
Grade B violation.9 Thus, the district court did not contradict
clearly settled law at the time of the revocation hearing. See
Thompson, 595 F.3d at 548. Second, a Grade B classification
does not violate a supervening precedent, see id., as neither
Carachuri-Rosendo nor Simmons addressed drug possession in the
context of revocation proceedings. Finally, in light of the
probation officer’s allegations of Brown’s myriad violations of
supervised release, all within one year of his completion of an
eight-year custodial sentence, including undisputed convictions
in state court for new offenses, we are hard pressed to discern
an abuse of discretion by the district court in its selection of
an appropriate sentence.10 Accordingly, the district court’s
imposition of a 24 month sentence was not plainly unreasonable.
III.
For the reasons set forth, the judgment of the
district court is
AFFIRMED.
9
See United States v. Jemerson, 132 F. App’x 48 (4th Cir.
2005) (per curiam); United States v. Justice, 70 F. App’x 719,
720 (4th Cir. 2003) (per curiam) (citing United States v.
Trotter, 270 F.3d 1150, 1153–54 (7th Cir. 2001)); United States
v. Griffin, 201 F.3d 438 (table), 1999 WL 1080107 (4th Cir.
1999) (per curiam).
10
Brown argued on brief, and confirmed at oral argument,
that our standard of review is abuse of discretion.
9