Filed: Mar. 04, 2015
Latest Update: Mar. 02, 2020
Summary: Certiorari granted by Supreme Court, June 30, 2015 Vacated and Remanded by Supreme Court, June 30, 2015 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4649 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO TASTE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:07-cr-00280-WO-1) Submitted: January 29, 2015 Decided: March 4, 2015 Before N
Summary: Certiorari granted by Supreme Court, June 30, 2015 Vacated and Remanded by Supreme Court, June 30, 2015 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4649 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANTONIO TASTE, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. William L. Osteen, Jr., Chief District Judge. (1:07-cr-00280-WO-1) Submitted: January 29, 2015 Decided: March 4, 2015 Before NI..
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Certiorari granted by Supreme Court, June 30, 2015
Vacated and Remanded by Supreme Court, June 30, 2015
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4649
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO TASTE,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:07-cr-00280-WO-1)
Submitted: January 29, 2015 Decided: March 4, 2015
Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven A. Feldman, FELDMAN and FELDMAN, Uniondale, New York, for
Appellant. Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antonio Taste pled guilty to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g)(1) (2012), and was
sentenced to 180 months’ imprisonment, the mandatory minimum
penalty under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e) (2012). On appeal, counsel submitted a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
were no meritorious issues for appeal, but suggesting that this
court consider whether the district court erred in designating
Taste an armed career criminal. Applying United States v. Harp,
406 F.3d 242, 246 (4th Cir. 2005), this court rejected counsel’s
argument and affirmed the judgment. United States v. Taste, 303
F. App’x 149 (4th Cir. 2008) (No. 08-4388).
In July 2012, Taste filed a 28 U.S.C. § 2255 (2012)
motion, arguing that his four North Carolina breaking and
entering convictions could no longer be considered violent
felonies for purposes of the ACCA in light of our decision in
United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). The Government responded that, while Taste may be
entitled to resentencing, he had numerous other violent felonies
and/or serious drug offenses that would still render him an
armed career criminal subject to a mandatory minimum 180-month
sentence. Although the Government posited that the enhanced
ACCA sentence was still appropriate, relying in part on Taste’s
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three Massachusetts “larceny from the person” convictions, it
agreed to resentencing in light of Simmons. 1 Accordingly, the
district court, accepting the magistrate judge’s recommendation,
granted the § 2255 motion as to Taste’s Simmons claim, vacated
the judgment, and ordered resentencing.
At resentencing in July 2014, the district court
concluded that Taste’s prior Massachusetts convictions for
larceny from the person were violent felonies for purposes of
the ACCA, and again applied the enhanced sentence of 180 months’
imprisonment. The district court imposed the same conditions of
supervised release as it did at the first sentencing, including
the following special condition:
The defendant shall submit to substance abuse testing,
at any time, as directed by the probation officer.
The defendant shall cooperatively participate in a
substance abuse treatment program, which may include
drug testing and inpatient or residential
treatment. . . .
On appeal, Taste first alleges that the district
court’s special condition that he “submit to substance abuse
testing at any time as directed by the probation officer”
constitutes an improper delegation of judicial function to the
probation officer. Specifically, he maintains that the district
1
As part of this concession, the Government further
affirmatively waived any statute of limitations defense that
might otherwise apply.
3
court erred in authorizing the probation department to conduct
substance abuse testing at any time during his term of
supervision, without issuing a schedule or setting a limitation
on the number of tests per year. Taste concedes that this claim
is reviewed for plain error because he did not object below. 2
To establish plain error, Taste must demonstrate that
the district court erred, the error was plain, and the error
affected his substantial rights. Henderson v. United States,
133 S. Ct. 1121, 1126 (2013). If these requirements are met,
the court will exercise its discretion to correct the error only
if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.”
Id. at 1126-27 (internal
quotation marks and alterations omitted).
We conclude that the district court did not err in
imposing the special condition. See United States v. Carpenter,
702 F.3d 882, 884-885 (6th Cir. 2012) (holding that when “the
2
The Government argues that Taste’s challenge to the
special condition, which was also imposed in the original
judgment, is barred because he could have raised it in his
initial appeal but failed to do so. Under the circumstances of
this case, where a resentencing hearing was held, we conclude
otherwise. See 28 U.S.C. § 2255(b) (2012) (“[T]he court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct the
sentence as may appear appropriate.”); see also United States v.
Haynes, 764 F.3d 1304, 1310 (11th Cir. 2014) (“[A] resentencing
court has the discretion to limit resentencing to the
‘appropriate’ relief granted in the order to vacate, set aside,
or correct the prisoner’s sentence.”).
4
district court imposed drug testing in connection with a special
condition of substance abuse program participation . . . [it]
was . . . not required to specify the number of drug tests [a
defendant] must undergo as a part of the treatment program.”).
Even assuming error, any improper delegation did not affect
Taste’s substantial rights. See United States v. Maciel-Vaquez,
458 F.3d 994, 996 (9th Cir. 2006) (holding any improper
delegation did not rise to level of plain error); United States
v. Padilla,
415 F.3d 211, 219-20 (1st Cir. 2005) (holding
district court’s erroneous delegation of authority to probation
officer to determine maximum number of drug tests to be
administered was not structural error and therefore did not
constitute plain error).
Next, Taste argues the district court erred in
designating him an armed career criminal based in part on his
Massachusetts convictions for larceny from the person. We
review de novo a district court’s determination of whether prior
offenses qualify as violent felonies for purposes of the ACCA.
United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).
In considering whether the district court properly designated
Taste an armed career criminal, we review the sentencing court’s
legal conclusions de novo and its factual findings for clear
error. United States v. McDowell,
745 F.3d 115, 120 (4th Cir.
5
2014), cert. denied, ___ S. Ct. ___, 2015 WL 132957 (Jan. 12,
2015).
A defendant is an armed career criminal when he
violates 18 U.S.C. § 922(g)(1) and has three prior convictions
for violent felonies or serious drug offenses. 18 U.S.C.
§ 924(e)(1). Because a Massachusetts conviction for larceny
from the person constitutes a violent felony for purposes of the
ACCA, we reject this argument. See United States v. Rodriguez,
659 F.3d 117, 118-20 (1st Cir. 2011) (holding Massachusetts
conviction for larceny from the person constitutes violent
felony under the residual clause of the ACCA); United States v.
DeJesus,
984 F.2d 21, 25 (1st Cir. 1993) (larceny from the
person as defined under Massachusetts law constitutes a crime of
violence); see also United States v. Jarmon,
596 F.3d 228, 230–
33 (4th Cir. 2010) (holding that North Carolina crime of larceny
from the person was a crime of violence under the residual
clause of the career offender guideline).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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