Filed: Nov. 13, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4040 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AARON POSLEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:08-cr-00295-LO-1) Submitted: October 9, 2009 Decided: November 13, 2009 Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and Norman K. MOON, United States District Judge for the Western Distr
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4040 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. AARON POSLEY, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:08-cr-00295-LO-1) Submitted: October 9, 2009 Decided: November 13, 2009 Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and Norman K. MOON, United States District Judge for the Western Distri..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4040
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
AARON POSLEY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cr-00295-LO-1)
Submitted: October 9, 2009 Decided: November 13, 2009
Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Norman K. MOON, United States District Judge for the Western
District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Rachel S.
Martin, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia; Richard D. Kelley, REED
SMITH, LLP, Falls Church, Virginia, for Appellant. Dana J.
Boente, United States Attorney, Inayat Delawala, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this appeal, the appellant, Aaron Posley, challenges a
special condition of his probation, namely, that he serve a six-
month continuous term of imprisonment, which was imposed
following his conviction for driving while intoxicated (DUI) on
Pentagon property in Arlington, Virginia. For the reasons that
follow, we affirm.
I
On February 17, 2008, Officer Jason Cummiskey of the
Pentagon Police Department conducted a traffic stop after he
observed Posley making an illegal left turn on Pentagon
property. During the traffic stop, Officer Cummiskey determined
that Posley was intoxicated and arrested him. After his arrest,
Posley failed a breath test, which measured his breath alcohol
concentration at .225 and .219, almost three times the legal
limit.
Posley was cited for numerous traffic violations, but
ultimately pled guilty to DUI and driving without an operator’s
license. His conviction on the instant DUI offense represented
his fifth DUI conviction since 1998.
On July 24, 2008, Posley was sentenced by a United States
Magistrate Judge. Posley received a $40 fine for his conviction
of driving without an operator’s license, and that conviction is
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not at issue in this appeal. Posley’s DUI conviction, 32 C.F.R.
§ 234.17(c)(1)(ii), was a Class B misdemeanor under federal law,
id. § 234.19, also known as a “petty offense.” 18 U.S.C. § 19.
Class B misdemeanors are punishable by no more than six months’
imprisonment,
id. §§ 3559(a)(7), 3581(b)(7), are not subject to
the imposition of supervised release,
id. § 3583(b)(3), and are
not subject to application of the Sentencing Guidelines, U.S.
Sentencing Guidelines Manual § 1B1.9. The magistrate judge
sentenced Posley to two years of probation with several special
conditions, including participating in an alcohol education
program as directed by the Probation Office. The special
condition at issue in this appeal is the one in which the
magistrate judge directed that Posley serve “six months in
prison.” (J.A. 20). According to the magistrate judge:
I am going to protect the public from you. You are
going to kill somebody, but not for a period of six
months. I impose the maximum sentence. I hope you
get the treatment you need, but it is not going to be
at the expense of the public.
Id.
Posley appealed his sentence to the district court. In
particular, he challenged his sentence on the basis that the
magistrate judge did not order that he serve the six months of
imprisonment “during nights, weekends, or other intervals of
time,” as set forth in 18 U.S.C. § 3563(b)(10), which statutory
subsection constitutes one of the twenty-three enumerated
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discretionary conditions of probation that a court may impose in
addition to certain mandatory conditions.
In response, the government presented two arguments.
First, the government argued that 18 U.S.C. § 3561(a)(3)
authorized the magistrate judge to impose a six-month continuous
term of imprisonment on Posley at the same time he sentenced him
to probation. Alternatively, the government argued that 18
U.S.C. § 3563(b)’s catch-all provision, which broadly requires
that a defendant “satisfy such other conditions as the court may
impose,” 18 U.S.C. § 3563(b)(22), authorized the magistrate
judge to impose a six-month continuous term of imprisonment as a
special condition of probation.
On December 23, 2008, in a memorandum opinion, the district
court concluded that the special condition of a six-month
continuous term of imprisonment was permitted under § 3563(b)’s
catch-all provision. In so concluding, the district court
expressly did not reach the § 3561(a)(3) issue.
On January 6, 2009, Posley filed a timely notice of appeal.
Two days later, he finished serving his six-month continuous
term of imprisonment. Posley currently is serving his two-year
term of probation. *
*
We note that the present appeal is not moot even though
Posley has served the six-month continuous term of imprisonment.
Cf. Kitt v. United States, 138 F.2d 842, 843 (4th Cir. 1943)
(Continued)
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II
Posley contends that the magistrate judge erred when he
imposed as a condition of his probation a six-month continuous
term of imprisonment. In so contending, Posley posits that the
district court erred in relying on § 3563(b)’s catch-all
provision, § 3563(b)(22), to uphold the special condition at
issue.
We need not decide whether the district court’s reliance on
§ 3563(b)(22) was in error, as any error here is harmless.
Unquestionably, the magistrate judge had the statutory authority
under § 3561(a)(3) to sentence Posley to a term of six months of
continuous imprisonment plus probation. See id. § 3561(a)(3)
(“A defendant who has been found guilty of an offense may be
sentenced to a term of probation unless-- . . . (3) the
defendant is sentenced at the same time to a term of
imprisonment for the same . . . offense that is not a petty
offense.”). Critically, we do not have an over incarceration
problem in this case, because Posley has not served one day of
imprisonment over the six-month maximum term of imprisonment for
(holding that court of appeals is not limited to striking the
excess of a sentence beyond the maximum authorized by statute
and allowing valid portion to remain, but could remand the case
for an entirely new resentencing where that appeared to be the
wiser course).
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a DUI offense. Moreover, there is no indication in the record
that Posley’s ultimate sentence would have been any different
had the magistrate judge believed that he could not have given
Posley the six-month continuous term of imprisonment as a
special condition of his probation. Under these circumstances,
any error with regard to the catch-all provision is harmless.
III
For the reasons stated herein, the judgment of the district
court is affirmed. 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 in the
decisional process.
AFFIRMED
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