Filed: May 20, 2015
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4599 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY WYNN, a/k/a Twin, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:02-cr-00178-RAJ-7) Argued: March 25, 2015 Decided: May 20, 2015 Before SHEDD, DUNCAN, and KEENAN, Circuit Judges. Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judg
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4599 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTHONY WYNN, a/k/a Twin, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:02-cr-00178-RAJ-7) Argued: March 25, 2015 Decided: May 20, 2015 Before SHEDD, DUNCAN, and KEENAN, Circuit Judges. Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4599
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY WYNN, a/k/a Twin,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:02-cr-00178-RAJ-7)
Argued: March 25, 2015 Decided: May 20, 2015
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Shedd and Judge Duncan joined.
ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant. V. Kathleen
Dougherty, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Richard J. Colgan, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Alexandria, Virginia, Darryl J. Mitchell,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider whether the district court
erred in determining, based on the defendant’s status as a
recidivist drug offender, that certain drug offenses committed
during his supervised release were Grade B violations under the
United States Sentencing Commission’s advisory policy statements
for violations of probation and supervised release (the ”policy
statements”). 1 The defendant argues that his drug offenses while
on supervised release constituted lesser Grade C violations, and
that the district court improperly applied a statutory
enhancement for recidivist conduct in reaching a contrary
conclusion.
We hold that the district court did not err in considering
the defendant’s prior offenses when determining the grade of his
supervised release violations under the policy statements.
Accordingly, we affirm the district court’s judgment.
1
As we have previously explained, “[r]ather than issue
guidelines to govern sentences for [violations of supervised
release and probation], the United States Sentencing Commission
chose instead ‘to promulgate policy statements only’ to give
courts ‘greater flexibility’ in devising revocation sentences.”
United States v. Crudup, 461 F.3d 433, 435 (4th Cir. 2006)
(quoting U.S.S.G. Ch.7, pt.A, introductory cmts. 1, 3(a)).
2
I.
In 2003, Anthony Wynn was convicted of conspiracy to
distribute and possession with intent to distribute heroin and
cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1).
The district court sentenced Wynn to a 150-month term of
imprisonment, followed by a five-year period of supervised
release. Among other things, the conditions of Wynn’s
supervised release required that Wynn refrain from unlawful use
of controlled substances and submit to drug testing as directed
by his probation officer.
In May 2014, after Wynn began serving his period of
supervised release, his probation officer filed a petition
alleging that Wynn had violated the conditions of his
supervision. The amended petition contained numerous alleged
violations, including that Wynn had possessed marijuana on six
separate occasions between February 2014 and June 2014. 2
During a supervised release revocation hearing in the
district court, Wynn admitted that he possessed marijuana on the
several occasions alleged by the probation officer. Based on
2
The petition and its addenda also included allegations
that Wynn drove a vehicle without a license, operated an
uninsured vehicle, and operated a vehicle with tinted windows.
The probation officer further alleged in the petition that Wynn
failed to submit monthly supervision reports, failed to
participate satisfactorily in substance abuse treatment, and
failed to provide timely notification to the probation officer
of an arrest.
3
Wynn’s admissions and the probation officer’s testimony, the
district court found that Wynn had violated the terms of his
supervision and, accordingly, revoked Wynn’s supervised release.
The probation officer calculated a term of imprisonment
under the advisory policy statements of between twenty-one and
twenty-seven months. This calculation was based on the
probation officer’s conclusion that, due to Wynn’s prior drug
convictions, his marijuana offenses were Grade B violations
because each offense was punishable by imprisonment of more than
one year under a recidivist enhancement. 3 In the Presentence
Investigation Report (PSR), the probation officer noted that in
addition to the 2003 federal drug convictions for which Wynn was
sentenced in part to the five-year period of supervised release,
Wynn also had been convicted in various state courts of several
drug offenses, including possession of heroin and possession
with intent to distribute heroin in 2002, possession of
marijuana in 2000, possession of heroin in 1999, and possession
of cocaine and marijuana in 1994.
3
The district court also found that Wynn had committed the
other alleged violations of the conditions of his supervision.
Under the policy statements, however, where there are multiple
violations of the conditions of supervision, “the grade of the
violation is determined by the violation having the most serious
grade.” U.S.S.G. § 7B1.1(b). In this case, it is undisputed
that the Grade B violations involving possession of marijuana
carried the most serious grade.
4
Wynn disputed the probation officer’s conclusion that the
marijuana offenses during his supervised release were Grade B
violations. He argued that the six incidents of possessing
marijuana were Grade C violations, because the “basic penalty”
under federal law for simple possession of marijuana does not
exceed a one-year term of imprisonment. Wynn asserted that in
determining the grade of his violations at a revocation hearing,
the district court was prohibited by the policy statements from
considering his prior convictions, which only were relevant to
determining his term of imprisonment at his original sentencing
hearing. Wynn argued that absent any consideration of his prior
record, his violations were merely Grade C violations, which
would yield an advisory penalty range under the policy
statements of between eight and fourteen months’ imprisonment.
The district court rejected Wynn’s argument, holding that
his recidivism directly affected the grade of his supervised
release violations, and that, therefore, his acts of possession
of marijuana constituted Grade B offenses. The court
accordingly adopted the probation officer’s recommended penalty
range and sentenced Wynn to serve a term of twenty-four months’
imprisonment. Wynn timely filed the present appeal.
5
II.
Our review on appeal initially is confined to the question
whether the revocation sentence is unreasonable; if the sentence
is not unreasonable, the sentence will be affirmed. 4 United
States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006). However,
if we conclude that the revocation sentence is unreasonable
either procedurally or substantively, we further must consider
whether the sentence is plainly unreasonable.
Id.
In the present case, Wynn challenges only the district
court’s procedural calculation of the advisory sentencing range.
Because the district court’s factual findings are not in
dispute, the sole question before us is whether the court
properly applied a statutory enhancement in calculating the
applicable policy statements range, a question of law that we
review de novo. United States v. Dowell,
771 F.3d 162, 170 (4th
Cir. 2014). Thus, we turn to consider whether the district
court correctly determined that Wynn’s conduct of possessing
marijuana constituted Grade B, rather than Grade C, violations
under the policy statements.
4
Our review of supervised release revocation sentences
“follow[s] generally the procedural and substantive
considerations that we employ in our review of original
sentences, . . . with some necessary modifications to take into
account the unique nature of supervised release revocation
sentences.” Crudup, 461 F.3d at 438-39.
6
Chapter 7 of the Guidelines contains three grades of
supervised release violations, only two of which are at issue in
this case. See U.S.S.G. § 7B1.1(a). In general, a defendant’s
conduct presents a Grade B violation if it is conduct
constituting a “federal, state, or local offense punishable by a
term of imprisonment exceeding one year.” 5 Id. § 7B1.1(a)(2).
In contrast, a Grade C violation is defined as conduct
constituting: (1) “a federal, state, or local offense punishable
by a term of imprisonment of one year or less;” or (2) “a
violation of any other condition of supervision.”
Id.
§ 7B1.1(a)(3).
Under federal law, although possession of a controlled
substance by a non-recidivist defendant subjects that defendant
to a term of imprisonment of not more than one year, a
recidivist defendant is subject to a greater term of
5
However, such conduct rises to the level of a Grade A
violation if it constitutes
(A) a federal, state, or local offense punishable by a
term of imprisonment exceeding one year that (i) is a
crime of violence, (ii) is a controlled substance
offense, or (iii) involves possession of a firearm or
destructive device of a type described in 26 U.S.C.
§ 5845(a); or (B) any other federal, state, or local
offense punishable by a term of imprisonment exceeding
twenty years.
U.S.S.G. § 7B1.1(a)(1).
7
imprisonment. 21 U.S.C. § 844(a). Section 844(a) provides, in
relevant part, that a defendant
may be sentenced to a term of imprisonment of not more
than 1 year, . . . , except that if he commits such
offense after . . . two or more prior convictions
under this subchapter or subchapter II of this
chapter, or two or more prior convictions for any
drug, narcotic, or chemical offense chargeable under
the law of any State, or a combination of two or more
such offenses have become final, he shall be sentenced
to a term of imprisonment for not less than 90 days
but not more than 3 years, . . . .
Id.
Wynn contends that under the Supreme Court’s decision in
Carachuri-Rosendo v. Holder,
560 U.S. 563 (2010), the district
court was prohibited from finding that the drug offenses that he
committed during supervised release were “punishable” under an
enhanced statutory penalty. According to Wynn, the government’s
failure to file a notice under 21 U.S.C. § 851(a)(1), signifying
an intent to rely on Wynn’s prior convictions at his revocation
sentencing, precluded any consideration of those convictions in
computing his advisory sentencing range.
We find no merit in this argument. Section 851(a)(1)
states, in relevant part, that
[n]o person who stands convicted of an offense under
this part 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.
8
21 U.S.C. § 851(a)(1). By its plain terms, this statute applies
only to the sentencing of criminal defendants who have been
convicted of a crime following the “entry of a plea of guilty”
or a “trial.” Id. The statute does not contain any reference
to supervised release revocation proceedings.
As the Supreme Court observed in Carachuri-Rosendo, Section
851 requires that during a criminal prosecution the government
“charge a defendant as a recidivist in the criminal information”
before seeking a recidivist enhancement. 560 U.S. at 578. The
Court accordingly held that the availability of an enhanced
sentence at the time of a prior conviction may not be considered
as part of a person’s criminal history in an immigration
proceeding, when the government had not sought under Section 851
to pursue the enhancement at the original sentencing for the
criminal offense.
Id. at 578-80. Thus, the import of the
Court’s holding was that the government was not permitted to
treat a criminal offense in an immigration proceeding as being
more serious than the offense was treated at the time of the
actual criminal prosecution.
Contrary to Wynn’s position, nothing in the decision in
Carachuri-Rosendo suggests that Section 851 plays any role in a
supervised release revocation hearing, or prevents a district
court from considering the fact of a defendant’s prior
convictions during such a proceeding. Indeed, the very purpose
9
of a supervised release revocation hearing is to determine the
gravity of the breach of trust committed by the defendant in the
context of the “conditional liberty” he was granted following
his conviction of the underlying offenses. See United States v.
Ward, 770 F.3d 1090, 1098 (4th Cir. 2014);
Crudup, 461 F.3d at
437-38. Thus, a determination of the gravity of a defendant’s
breach of trust, as reflected by the sentencing mandate of
Section 844(a), necessarily requires consideration of the
defendant’s criminal history unencumbered by a notice
requirement applicable to an original criminal prosecution.
Wynn next argues, however, that the district court was
constrained to consider only the “basic” penalty imposed by the
statute for simple possession of marijuana, rather than the
penalty imposed by the statute for such acts committed by a
recidivist defendant. In support of his position, Wynn relies
on Application Note 1 to U.S.S.G. § 7B1.1, which states that
[u]nder 18 U.S.C. §§ 3563(a)(1) and 3583(d), a
mandatory condition of probation and supervised
release is that the defendant not commit another
federal, state, or local crime. A violation of this
condition may be charged whether or not the defendant
has been the subject of a separate federal, state, or
local prosecution for such conduct. The grade of
violation does not depend upon the conduct that is the
subject of criminal charges or of which the defendant
is convicted in a criminal proceeding. Rather, the
grade of the violation is to be based on the
defendant’s actual conduct.
10
U.S.S.G. § 7B1.1 cmt. n. 1. Wynn focuses exclusively on the
final two sentences of the commentary, asserting that “actual
conduct” describes only conduct committed on supervised release
completely divorced from the defendant’s earlier conduct. Id.
We disagree with Wynn’s argument.
Viewed in context, the commentary that Wynn cites fails to
support his position. Application Note 1 instructs that in
grading a violation of supervised release, a district court may
consider not only conduct for which a defendant is prosecuted in
a criminal case, but all of a defendant’s conduct, “whether or
not the defendant has been the subject of . . . prosecution for
such conduct.” Id.; see United States v. Trotter, 270 F.3d
1150, 1155 (7th Cir. 2001) (“Application Note 1 tells the
district judge to consider what the person on supervised release
did, rather than what crimes he has been charged with.”
(emphases in original)). Rather than limiting a district
court’s ability to consider a defendant’s conduct, Application
Note 1 suggests that district courts consider all conduct that
affects the maximum penalties for a supervised release
violation. See
Trotter, 270 F.3d at 1155 (“A judge engaged in
real-offense sentencing does not ignore prior offenses that
affect the maximum punishment; recidivist enhancements are part
of real-offense sentencing.”).
11
Accordingly, we hold that the district court did not err in
concluding that Wynn’s prior drug convictions increased the
extent to which his marijuana offenses during supervised release
were “punishable” under Section 844(a). Thus, the district
court correctly determined that Wynn’s multiple acts of
possessing marijuana during his supervised release constituted
Grade B violations under the Guidelines’ Chapter 7 advisory
policy statements.
III.
For these reasons, Wynn’s revocation sentence is not
unreasonable, and we affirm the district court’s judgment.
AFFIRMED
12
