United States v. Gray , 420 F. App'x 234 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4232
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER DEWONE GRAY,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:03-cr-00043-MR-1)
Submitted: January 12, 2011 Decided: April 1, 2011
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Claire J. Rauscher, Executive Director, Ann L. Hester, Assistant
Federal Defender, Erin K. Taylor, Research and Writing Attorney,
Charlotte, North Carolina, for Appellant. Anne M. Tompkins,
United States Attorney, Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Dewone Gray appeals the district court’s
judgment revoking his supervised release and imposing a thirty-
month prison term. For the reasons that follow, we affirm.
Gray first contends that the district court erred by
finding that he committed a Grade A supervised release violation
by possessing cocaine with intent to distribute. A decision to
revoke a defendant’s supervised release is reviewed for abuse of
discretion. United States v. Pregent, 190 F.3d 279, 282 (4th
Cir. 1999). The 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); United States v.
Copley, 978 F.2d 829, 831 (4th Cir. 1992). We review for clear
error factual determinations underlying the conclusion that a
violation occurred. United States v. Carothers, 337 F.3d 1017,
1019 (8th Cir. 2003).
The district court revoked Gray’s supervised release
based on Grade C violations that he does not dispute and a Grade
A violation that he disputes: possession of cocaine with intent
to sell and deliver. Gray concedes that he possessed cocaine,
but argues that the district court clearly erred in finding that
the possession was with intent to sell and deliver.
Intent to distribute a controlled substance may be
inferred from a variety of circumstantial factors, including the
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method of packaging. United States v. Fisher, 912 F.2d 728,
730-31 (4th Cir. 1990); State v. Morgan, 406 S.E.2d 833, 835
(N.C. 1991). “Even when the amount of drugs involved is small,
the surrounding circumstances may allow the [factfinder] to find
an intent to distribute.” State v. James, 344 S.E.2d 77, 80
(N.C. Ct. App. 1986).
Here, Gray was found in possession of fourteen rocks
of crack totaling 3.1 grams that were individually packaged.
The arresting officer testified that such packaging was
consistent with intent to distribute. Gray was a known
substance abuser and, as a condition of supervised release, had
undergone numerous tests for drug use and had tested positive
for marijuana on several occasions. However, there was no
evidence that he ever had a positive test for cocaine or crack
or was a user of these substances. In light of this evidence,
we conclude that the district court did not clearly err by
finding that Gray possessed the crack with intent to distribute.
Gray also argues that his sentence is procedurally
unreasonable because the district court improperly calculated
his policy statement range, failed to provide a sufficient
explanation for the sentence imposed, and treated the policy
statements as mandatory. We will not disturb a sentence imposed
after revocation of supervised release if it is within the
prescribed statutory range and is not plainly unreasonable.
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United States v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006). ∗
In making this determination, we first consider whether the
sentence is 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 and citation
omitted).
The district court’s discretion is not unlimited,
however. United States v. Thompson, 595 F.3d 544, 547 (4th Cir.
2010). For instance, the district court commits procedural
error by failing to adequately explain the chosen sentence or by
not providing an individualized assessment based on the facts.
Gall v. United States, 552 U.S. 38, 51 (2007). Although “[a]
court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a post-
conviction sentence, . . . it still must provide a statement of
reasons for the sentence imposed.” Thompson, 595 F.3d at 547
(internal quotation marks and citation omitted). The judge also
must “set forth enough to satisfy the appellate court that he
∗
Gray questions this court’s use of the plainly
unreasonable standard as provided in Crudup. However, a panel
of this court cannot overrule the precedent set by another
panel. United States v. Foster, 507 F.3d 233, 251 n.12 (4th
Cir. 2007).
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has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009).
Gray contends that the district court improperly
calculated his policy statement range based on a Grade A
violation, because the court’s finding that he possessed cocaine
with intent to distribute was clearly erroneous. As discussed
above, this claim is without merit.
Next, Gray challenges the adequacy of the district
court’s explanation of his sentence. Gray had requested a
sentence below the policy statement range of thirty to thirty-
seven months’ imprisonment, based on his substance abuse
problem. Initially, the court did not explain its decision to
impose a sentence at the bottom of the policy statement range.
However, when Gray requested to have his federal revocation
sentence run concurrently with the state sentence imposed on his
underlying controlled substance conviction, the court declined,
explaining that, although both sentences arose from the same
conduct, the state sentence punished a violation of state law
and the federal sentence punished Gray’s failure to comply with
the conditions of supervised release. The court explained that
serving his full federal sentence in a federal facility would
enable Gray to get the full benefit of the substance abuse
treatment available in a federal facility, emphasizing the
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importance of such treatment for Gray. We conclude that the
court’s explanation was sufficient for this court to conclude
that the judge considered Gray’s arguments for a sentence below
the policy statement range and provided reasons for the sentence
imposed. See Carter, 564 F.3d at 328.
Finally, Gray claims that the district court committed
procedural error because it misunderstood U.S. Sentencing
Guidelines Manual § 7B1.3(f), p.s. (2009), to require the court
to impose the revocation sentence consecutively to Gray’s North
Carolina sentence on the underlying controlled substance
offense. The Chapter Seven policy statements concerning
revocation of supervised release are not mandatory. United
States v. Davis, 53 F.3d 638, 640-41 n.9 (4th Cir. 1995); see
also United States v. Contreras-Martinez, 409 F.3d 1236, 1241
(10th Cir. 2005) (despite “seemingly mandatory language . . .
[USSG] § 7B1.3(f) . . . is merely an advisory policy
statement”). The district court acknowledged that the policy
statements were advisory despite noting the seeming mandatory
language in § 7B1.3(f) and offered reasons independent of
§ 7B1.3(f) for imposing a consecutive sentence. We conclude
that the court understood that it had the discretion to
determine whether to run the revocation sentence concurrently or
consecutively to Gray’s North Carolina state sentence on the
underlying drug offense.
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Accordingly, we affirm the judgment. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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