United States v. Jackson , 295 F. App'x 592 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4425
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HAROLD STEVEN JACKSON, a/k/a Ears,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (8:02-
cr-00396-PJM-1)
Submitted: August 29, 2008 Decided: October 3, 2008
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Lisa W. Lunt, Assistant
Federal Public Defender, Sherri Keene, Staff Attorney, Greenbelt,
Maryland, for Appellant. Deborah A. Johnston, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold Steven Jackson appeals the twenty-four month
sentence the district court imposed upon finding Jackson violated
the terms of his supervised release. Counsel submitted a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), averring
there are no meritorious issues for appeal, but suggesting this
court should consider whether: (1) Jackson’s due process rights
were violated when, upon his arrest, he was not shown the arrest
warrant; and (2) the district court erred in determining the grade
of the violation. In his pro se supplemental brief and the
amendments thereto, Jackson elaborates on these arguments and
further maintains the length of time between his initial detention
and the violation hearing was unreasonable. We have carefully
reviewed the record in this case, and conclude there is no
reversible error. Accordingly, for the reasons set forth below, we
affirm the district court’s judgment.
Approximately one year after Jackson began his term of
supervised release, Jackson’s probation officer filed a petition on
supervised release, alleging Jackson committed the following two
violations: (1) that on May 1, 2006, Jackson threw a handgun from
his person while fleeing from the police (“First Violation”); and
(2) that on May 14, 2006, Jackson burglarized the home of his ex-
girlfriend, Selene Proctor (“Second Violation”). The probation
officer subsequently amended the petition to add a third violation:
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that on June 6, 2006, “Ms. Proctor filed a second Temporary Peace
Order against Mr. Jackson for harassment, stalking, trespass,
malicious destruction of property, and threats of violence during
the period of May 2006 up until the present” (“Third Violation”).
In addition to the supervised release violation, the
Government also charged Jackson with being a felon in possession of
a firearm (Case No. PJM-06-306) (“substantive charge”). Jackson
pled guilty to the substantive charge, and in February 2007, he was
sentenced to eighty-seven months’ imprisonment for that offense.
In April 2007, the district court conducted a separate
hearing on the supervised release revocation, at which Jackson
admitted the conduct underlying the First Violation. To establish
that Jackson committed the Second and Third Violations, the
Government proffered evidence from Jackson’s sentencing hearing in
the substantive charge.
The district court found Jackson committed all three
violations, and concluded the Second and Third Violations were
Grade A offenses. This, combined with a criminal history category
III, yielded a policy statement range of eighteen to twenty-four
months’ imprisonment. After considering the nature of the offense,
Jackson’s background, and the need “to deter others from acting
this way [and] to deter this defendant from acting this way,” the
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district court sentenced Jackson to twenty-four months’
imprisonment. Jackson noted a timely appeal.1
I. Alleged Violation of Due Process
As counsel acknowledges in her brief, Jackson did not
argue in the district court that the alleged failure by the police
to show Jackson the arrest warrant violated his due process rights.
Accordingly, this court’s review is for plain error. Fed. R. Crim.
P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).
There is simply insufficient evidence in the record on
which to conclude there was any error regarding service of the
arrest warrant. Jackson neither testified regarding this issue,
nor submitted any evidence to establish he was not shown the arrest
warrant. Accordingly, on the present record, we discern no error,
let alone error that is plain.
II. Determination of Grade of Violation
Jackson next contends the district court improperly
classified the Second and Third Violations as Grade A violations.
In relevant part, pursuant to Chapter Seven of the U.S. Sentencing
1
Jackson’s attorney erroneously captioned the notice of appeal
with the case number for the substantive charge, as opposed to that
of the supervised release violation. The Government moved to
dismiss the appeal, arguing it was not timely as to the substantive
charge. Recognizing that the erroneous case number was a clerical
error, this court denied the Government’s motion.
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Guidelines (“USSG”), a Grade A violation involves conduct that:
violates federal, state, or local law; is punishable by a term of
imprisonment greater than one year; and is a crime of violence.
USSG § 7B1.1(a)(1), p.s. (2006). Application Note Two to this
policy statement provides that the term “crime of violence” is
defined by USSG § 4B1.2. USSG § 7B1.1, p.s., cmt. n.2.
Application Note One to USSG § 4B1.2 reflects that “burglary of a
dwelling” is a crime of violence. USSG § 4B1.2 cmt. n.1. Under
Maryland law, even the lowest degree burglary offense — fourth
degree burglary — is punishable by up to three years’ imprisonment.
See Md. Code Ann., Crim. Law § 6-205 (LexisNexis 2002).
The district court correctly classified the Second
Violation — burglary — as a Grade A violation. See USSG §§ 4B1.2
cmt. n.1 & 7B1.1, p.s., cmt. n.2. According to USSG § 7B1.1(b),
p.s., “[w]here there is more than one violation of the conditions
of supervision, . . . the grade of the violation is determined by
the violation having the most serious grade.” Thus, the violation
as a whole was properly graded a Grade A violation.2
III. Other Issues
We reject Jackson’s pro se claim that the hearing on the
supervised release violation was unreasonably delayed. In the
2
The fact that the State of Maryland later declined to
prosecute Jackson for the burglary offense does not alter this
result. USSG § 7B1.1, p.s., cmt. n.1.
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interim period between being charged with the violation and the
hearing, Jackson was charged with and pled guilty to a separate
substantive felon-in-possession offense. As the conduct under the
substantive charge was inextricably linked with that alleged in the
supervised release violation, there was no error in deferring
action on the violation pending resolution of the substantive
charge. As the Government noted, Jackson was already incarcerated
on that offense.
Finally, although not expressly raised by Jackson or his
counsel, because this case is before us pursuant to Anders, we have
reviewed Jackson’s sentence, and find it is not unreasonable. See
United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006).
The sentence was procedurally reasonable, id. at 438-39, as the
district court properly calculated Jackson’s sentencing range under
Chapter Seven’s policy statement, and sentenced Jackson within that
range. See United States v. Finley, 531 F.3d 288, 294 (4th Cir.
2008) (“In applying the ‘plainly unreasonable’ standard, we first
determine, using the instructions given in Gall [v. United States,
128 S. Ct. 586, 597 (2007)], whether a sentence is
‘unreasonable.’”). Moreover, the sentence was substantively
reasonable, as the district court articulated several reasons for
its choice of sentence, including Jackson’s background and the need
to deter further crime.
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In accordance with Anders, we have reviewed the entire
record for any other meritorious issues and have found none.
Accordingly, we affirm the district court’s judgment. We require
that counsel inform Jackson, in writing, of the right to petition
the Supreme Court of the United States for further review. If
Jackson requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Jackson. We
dispense with oral argument because the facts and legal contentions
are adequately set forth in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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