United States v. Tommy Essick , 524 F. App'x 917 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4897
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TOMMY ESSICK,
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. (2:95-cr-00112-NCT-6)
Submitted: May 13, 2013 Decided: May 24, 2013
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant. Ripley Rand, United States
Attorney, Randall S. Galyon, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tommy Essick appeals the district court’s order
revoking his supervised release and imposing a sentence of
thirty months’ imprisonment. Essick argues that his sentence is
procedurally unreasonable because the district court erroneously
characterized his conduct as a Grade A violation and because the
court did not consider the 18 U.S.C. § 3553(a) (2006) factors
applicable to supervised release revocation sentences. We
affirm.
A district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We will
affirm a revocation sentence if it is not “plainly
unreasonable.” United States v. Crudup, 461 F.3d 433, 439 (4th
Cir. 2006). In making this determination, we first consider
whether the sentence imposed is procedurally or substantively
unreasonable. Id. at 438-49. Only if a sentence is found
procedurally or substantively unreasonable will we “then decide
whether the sentence is plainly unreasonable.” Id. at 439. A
revocation sentence is procedurally reasonable if the district
court has considered the advisory policy statement range and the
§ 3553(a) factors applicable to supervised release revocation.
Id. at 438-40. A revocation sentence is substantively
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reasonable if the district court stated a proper basis for its
sentencing decision. Id. at 440.
Essick first claims that the sentence imposed by the
district court is procedurally unreasonable because the court
erroneously classified his conduct as a Grade A violation of the
terms of his supervised release. Essick argues that his conduct
is punishable by less than one year in prison under state law
and thus should be classified as a Grade B violation. However,
a Grade A violation is “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 (“USSG”)
§ 7B1.1(a)(1), p.s. (2012). The commentary to the Guidelines
emphasizes that “[t]he 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 the violation is to be based on the defendant’s actual
conduct.” USSG § 7B1.1, p.s., cmt. n.1; see also United
States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002)
(concluding that 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). Here,
the Government presented evidence at the revocation hearing
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establishing that Essick’s conduct involved possession with the
intent to distribute five ounces of marijuana, which constitutes
a federal offense punishable by imprisonment for a term
exceeding one year. See 21 U.S.C.A. § 841(b)(1)(D) (West Supp.
2012) (authorizing up to five years’ imprisonment for possession
with intent to distribute less than fifty kilograms of
marijuana). Thus, because Essick’s actual conduct constituted a
federal offense punishable by imprisonment for a term exceeding
one year, we conclude that the district court properly
classified Essick’s conduct as a Grade A violation.
Essick also argues that the district court did not
consider the § 3553(a) factors applicable to supervised release
revocation sentences. We disagree. “Regardless of whether the
district court imposes an above, below, or within-Guidelines
sentence, it must place on the record an individualized
assessment based on the particular facts of the case before it.”
United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009)
(internal quotation marks omitted). However, “[a] court need
not be as detailed or specific when imposing a revocation
sentence as it must be when imposing a post-conviction sentence,
but it still must provide a statement of reasons for the
sentence imposed.” Thompson, 595 F.3d at 547 (internal
quotation marks omitted).
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Here, the district court imposed a below-Guidelines
sentence of thirty months’ imprisonment. The district court
acknowledged Essick’s age by noting that Essick first came
before the court in 1990 and that “we’re both older than we were
when we first met each other.” See 18 U.S.C. § 3553(a)(1).
Further, the district court stated that it would “give [Essick]
credit” for completing an alcohol treatment program while on
supervised release. See 18 U.S.C. § 3553(a)(1). Additionally,
in rejecting Essick’s request for leniency, the court stated
“there was too much involved in that earlier time, and then
this, too.” See generally 18 U.S.C. § 3553(a)(2)(C). Further,
the district court recommended that Essick be permitted to
participate in drug treatment programs while in prison. See 18
U.S.C. § 3553(a)(2)(D). We conclude that the court’s comments
demonstrated that it considered the relevant § 3553(a) factors.
Finally, Essick challenges the district court’s
refusal to give him credit for eighteen months’ imprisonment
that he served on a conviction for possession of a firearm by a
felon that was later reversed. However, Essick cites to no
authority establishing that the district court was required to
take that into consideration. Accordingly, we find Essick’s
argument unpersuasive.
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We therefore 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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