United States v. Freedom Born Divine , 547 F. App'x 280 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4385
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREEDOM BORN DIVINE, a/k/a Rico Rivers,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Mark S. Davis, District
Judge. (2:11-cr-00168-MSD-TEM-1)
Submitted: November 6, 2013 Decided: December 3, 2013
Before SHEDD and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam.
Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Norfolk, Virginia, for Appellant. Neil H.
MacBride, United States Attorney, V. Kathleen Dougherty,
Assistant United States Attorney, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Freedom Born Divine appeals the fifteen-month sentence
imposed upon the revocation of his supervised release term. On
appeal, Divine asserts that his revocation sentence was
procedurally unreasonable, because the court erred in concluding
that his most serious violation—possession of marijuana—was
properly classified as a Grade B violation. Finding no
reversible error, we affirm.
Generally, we will affirm a sentence imposed upon
revocation of supervised release unless the sentence is “plainly
unreasonable.” See United States v. Crudup, 461 F.3d 433, 437
(4th Cir. 2006). We first determine whether the sentence is
unreasonable, applying the same general inquiry used to assess
the reasonableness of original sentences. Id. at 438. If the
sentence is found unreasonable, we must determine whether it is
“plainly” so, relying on the same definition of “plain” applied
when conducting a plain-error analysis. United States v.
Thompson, 595 F.3d 544, 547-48 (4th Cir. 2010).
Because Divine did not challenge in the district court
the characterization of his possession-of-marijuana violation as
a Grade B violation, we review the issue for plain error. See
United States v. Bennett, 698 F.3d 194, 199 (4th Cir. 2012),
cert. denied, 133 S. Ct. 1506 (2013). To establish plain error,
Divine must show (1) an error occurred, (2) the error was plain,
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and (3) the error affected his substantial rights. United
States v. King, 628 F.3d 693, 699 (4th Cir. 2011). Even if he
makes this showing, we will exercise our discretion to reverse
“only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Powell, 680 F.3d 350, 358 (4th Cir.) (internal quotation marks
omitted), cert. denied, 133 S. Ct. 376 (2012). “The term
‘plain’ error is synonymous with ‘clear’ or ‘obvious’ error. An
error is plain if the settled law of the Supreme Court or this
circuit establishes that an error has occurred.” United States
v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (some internal
quotation marks omitted; citations omitted); see also United
States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012) (“[W]here
we have yet to speak directly on a legal issue and other
circuits are split, a district court does not commit plain error
by following the reasoning of another circuit.”).
Divine asserts that the district court plainly erred
in classifying his marijuana possession as a Grade B violation,
rather than a Grade C violation. Grade A violations include
conduct constituting (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.
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U.S. Sentencing Guidelines Manual (“USSG”) § 7B1.1(a)(1), p.s.
(2003). Grade B violations include “conduct constituting any
other federal, state, or local offense punishable by a term of
imprisonment exceeding one year.” USSG § 7B1.1(a)(2), p.s.
Grade C violations include conduct constituting any other
criminal offense punishable by a year or less of imprisonment or
any other violation of a supervised release condition. USSG
§ 7B1.1(a)(3), p.s. “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.” USSG § 7B1.1 cmt. n.1.
The parties agree that Divine’s conduct would be
punishable as a federal offense under 21 U.S.C. § 844(a) (2012),
which criminalizes the simple possession of a controlled
substance. A person who violates this provision and has no
prior drug conviction is subject to a maximum sentence of one
year of imprisonment. Id. However, a person who violates this
provision and has a prior drug conviction is subject to a
sentence of fifteen days’ to two years’ imprisonment. Id.
Although Divine’s criminal history reveals at least
one prior controlled substance conviction, he asserts that this
prior conviction is not “conduct” relevant in determining the
classification for his supervised release violation. He relies
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upon both Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and
United States v. Simmons, 649 F.3d 237, 243 (4th Cir. 2011) (en
banc), to argue that the court could not consider the recidivist
enhancement for his hypothetical § 844(a) offense because the
Government was unable to comply with the protections of 21
U.S.C. § 851 (2012) in the context of a revocation proceeding.
He also identifies authority affirming revocation sentences for
simple possession violations that were classified as Grade C
violations.
In response, the Government argues that the district
court did not err in classifying Divine’s offense as a Grade B
violation, as Divine was eligible for the recidivist enhancement
due to his prior conviction, and § 851 notice requirements are
inapplicable in the supervised release context. The Government
also distinguishes Carachuri-Rosendo and Simmons and identifies
unpublished cases affirming revocation sentences in which simple
possession violations were classified as Grade B violations.
Ultimately, we need not resolve this dispute, as any
error by the district court was not “plain.” The district
court’s conclusion that Divine’s marijuana possession was a
Grade B offense is supported by unpublished authority from this
circuit, e.g., United States v. Jemerson, 132 F. App’x 488, 489-
90 (4th Cir. 2005) (No. 04-5008); United States v. Justice, 70
F. App’x 719, 720 (4th Cir. 2003) (No. 03-4388), as well as
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authority from other circuits, see United States v. Trotter, 270
F.3d 1150, 1154 (7th Cir. 2001) (recognizing that, when
determining whether defendant’s conduct is punishable by more
than one year of imprisonment in context of supervised release
revocation, “court must determine whether the conduct is a
felony (etc.) after prior convictions are taken into account”);
United States v. Crace, 207 F.3d 833, 837-38 (6th Cir. 2000)
(permitting court to consider prior convictions when determining
whether conduct was properly classified as Grade B violation);
United States v. Seiber, 516 F. App’x 208, 214-16 (3d Cir. 2013)
(No. 12-2523) (rejecting argument, under Carachuri-Rosendo, that
§ 851 notice was required to apply recidivist enhancement when
determining possible penalty for simple possession, and
concluding recidivist simple possession is Grade B violation);
United States v. Jackson, 510 F. App’x 149, 155-56 (3d Cir.)
(No. 12-2390) (rejecting argument that supervised release
violation based on simple possession could not be Grade B felony
unless Government filed § 851 information), cert. denied, 133 S.
Ct. 1477 (2013). Moreover, to the extent Carachuri-Rosendo and
Simmons may provide support for Divine’s conclusion that his
conduct was a Grade C violation, they do not clearly compel that
conclusion, as they do not address drug possession in the
context of revocation proceedings. Thus, while this circuit’s
unpublished authority finding simple possession offenses as
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Grade B violations predates both Carachuri-Rosendo and Simmons,
neither Carachuri-Rosendo nor Simmons so clearly abrogates the
court’s prior reasoning as to require reversal for plain error.
The district court’s classification of Divine’s conduct as a
Grade B offense therefore did not run afoul of any settled law
and was not obviously incorrect under available authority.
Because Divine cannot demonstrate plain error, 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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