United States v. Alvin Brewer ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4286
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN BREWER, a/k/a Avenue,
Defendant - Appellant.
No. 13-4287
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALVIN BREWER,
Defendant - Appellant.
Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:96-cr-00004-MOC-3; 3:01-cr-00027-MOC-1)
Submitted: December 26, 2013 Decided: January 13, 2014
Before DAVIS, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William R. Terpening, NEXSEN PRUET, PLLC, Charlotte, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Melissa L. Rikard, Assistant United States Attorney,
Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Alvin Brewer appeals the district court’s judgments
revoking his supervised release for two separate convictions
involving crack cocaine and sentencing him to a total of forty-
six months’ imprisonment. On appeal, Brewer’s sole contention
is that the district court erred when it classified one of those
offenses (“2001 offense”) as a Class A felony. Brewer contends
that in light of changes to the federal sentencing regime
effected under the Fair Sentencing Act of 2010, his 2001 offense
should be deemed a Class B felony. We reject his contention and
affirm.
Because Brewer did not properly preserve this argument
in the district court and did not argue for a different sentence
at the revocation hearing, our review is for plain error. See
Henderson v. United States, 133 S. Ct. 1121, 1124-27 (2013)
(discussing plain error standard). To persuade us to “correct a
forfeited error,” the defendant must show “(1) there is an
error, (2) the error is plain, and (3) the error affects
substantial rights.” Henderson, 133 S. Ct. at 1126 (internal
quotation marks and alteration omitted). Even if these
requirements are met, we will notice the error only if it
“seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. at 1126-27 (internal quotation
marks and alteration omitted).
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Having fully considered Brewer’s argument, we conclude
that the district court did not commit error, plain or
otherwise. Because a supervised release revocation sentence
relates to the original offense, the district court looks to
“the underlying offense as it existed at the time of
[defendant’s] original sentencing” when determining the
appropriate revocation sentence. United States v. Turlington,
696 F.3d 425, 427-28 (3d Cir. 2012). Therefore, the district
court properly construed the 2001 offense as a Class A felony.
Accordingly, we affirm the district court’s judgments.
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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