United States v. Brian Coleman , 492 F. App'x 454 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5200
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN COLEMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:11-cr-00183-NCT-1)
Submitted: July 30, 2012 Decided: August 21, 2012
Before WILKINSON, KEENAN, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Louis Carr Allen, III, Federal Public Defender, Gregory Davis,
Assistant Federal Public Defender, Winston-Salem, North
Carolina, for Appellant. Clifton Thomas Barrett, Michael A.
DeFranco, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Coleman appeals the district court’s order
revoking his supervised release and sentencing him to twenty-
four months of imprisonment. Counsel has filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal but
questioning whether the district court abused its discretion in
finding that Coleman had committed a Grade A violation and in
imposing an active sentence. Although advised of his right to
file a pro se supplemental brief, Coleman has not done so.
Generally, we review a district court’s judgment
revoking supervised release and imposing a term of imprisonment
for abuse of discretion. United States v. Pregent, 190 F.3d
279, 282 (4th Cir. 1999); United States v. Copley, 978 F.2d 829,
831 (4th Cir. 1992). To revoke supervised release, a district
court need only find a violation of a condition of supervised
release by a preponderance of the evidence. 18 U.S.C.
§ 3583(e)(3) (2006); Copley, 978 at 831.
A Grade A violation results from “conduct constituting
a federal, state, or local offense punishable by a term of
imprisonment exceeding one year that . . . is a controlled
substance offense.” U.S. Sentencing Guidelines Manual
§ 7B1.1(a)(1) (2010) (USSG). A “controlled substance offense”
for purposes of § 7B1.1(a)(1) includes state or federal crimes
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prohibiting the distribution of a controlled substance, as well
as the possession of a controlled substance with the intent to
distribute, that are punishable by more than a year in prison.
USSG §§ 4B1.2(b), 7B1.1 cmt. (n.3). The commentary to USSG
§ 7B1.1, p.s., emphasizes that the “grade of violation does not
depend on the conduct that is the subject of criminal charges of
which the defendant is convicted in a criminal proceeding.
Rather, the grade of violation is to be based on the defendant’s
actual conduct.” USSG § 7B1.1, p.s., cmt. (n.1); see United
States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002)
(violation of terms of supervised release is determined based on
defendant’s conduct and may be found whether defendant was ever
convicted of any particular offense).
At Coleman’s revocation hearing, the Government
presented the testimony of Detective Chris Sapp from the
Randolph County Police Department, narcotics division. Sapp
testified that, based on a confidential informant’s controlled
purchase of cocaine from Coleman, a search warrant of his
residence was obtained and executed on February 11, 2011,
resulting in the first set of state court charges alleged in the
revocation petition. Based on this evidence, we find that the
district court did not abuse its discretion in concluding that
Coleman distributed cocaine. And, because the sale of cocaine
constitutes a federal offense punishable by a term of more than
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one year imprisonment, see 21 U.S.C. § 841 (2006), the district
court did not abuse its discretion in concluding that Coleman’s
conduct constituted a Grade A offense.
A sentence imposed after revocation of supervised
release should be affirmed if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In
making this determination, we first consider whether the
sentence imposed is procedurally or substantively unreasonable.
Id. at 438. “This initial inquiry takes a more deferential
appellate posture concerning issues of fact and the exercise of
discretion than reasonableness review for guidelines sentences.”
United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007)
(internal quotation marks omitted).
A sentence imposed upon revocation of release is
procedurally reasonable if the district court considered the
Chapter Seven policy statements and the applicable 18 U.S.C.
§ 3553(a) (2006) factors, see 18 U.S.C. § 3583(e); Crudup, 461
F.3d at 438-40, and adequately explained the sentence imposed,
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). A
sentence imposed upon revocation of release is substantively
reasonable if the district court stated a proper basis for
concluding that the defendant should receive the sentence
imposed, within the statutory maximum. Crudup, 461 F.3d at 440.
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The court will affirm if the sentence is not unreasonable. Id.
at 439. Only if a sentence is found procedurally or
substantively unreasonable will the Court “decide whether the
sentence is plainly unreasonable.” Id. “[T]he court ultimately
has broad discretion to revoke its previous sentence and impose
a term of imprisonment up to the statutory maximum.” Id.(internal quotation marks omitted).
We conclude that Coleman’s sentence is both
procedurally and substantively reasonable. The district court
considered the Chapter 7 policy statements and relevant
statutory factors, and properly imposed a sentence that was
reasonable and within the policy-statement range.
In accordance with Anders, we have reviewed the record
and have found no meritorious issues for appeal. We therefore
affirm the judgment below. This court requires that counsel
inform Coleman, in writing, of his right to petition the Supreme
Court of the United States for further review. If Coleman
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, counsel may move in this
court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Coleman. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED
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