United States v. Jimmie Wade Lemaster, Jr. ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4150
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JIMMIE WADE LEMASTER, JR.,
Defendant - Appellant.
No. 12-4151
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JIMMIE WADE LEMASTER, JR.,
Defendant - Appellant.
No. 12-4183
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JIMMIE WADE LEMASTER, JR.,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Huntington and Charleston. John
T. Copenhaver, Jr., District Judge. (3:11-cr-00183-1; 2:07-cr-
00064-1; 2:08-cr-00197-1)
Submitted: June 11, 2012 Decided: June 18, 2012
Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Lex A. Coleman, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. R. Booth
Goodwin II, United States Attorney, Philip H. Wright, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Jimmie Wade Lemaster,
Jr., appeals the sentence imposed on his conviction for being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006), and the terms of supervised
release imposed after the court revoked two periods of
supervised release upon finding that Lemaster violated the
conditions. In a plea agreement, Lemaster agreed that a 110
month term of imprisonment was the appropriate disposition for
the new conviction and the two supervised release violations.
The district court sentenced Lemaster to 110 months’
imprisonment and three years’ supervised release for the new
conviction and two concurrent terms of three years’ supervised
release for the supervised release violations. On appeal,
Lemaster claims it was plain error for the court to impose the
two terms of supervised release when it did not also impose a
period of incarceration for either violation, citing 18 U.S.C.
§ 3583(h) (2006). Because we conclude that Lemaster’s
substantial rights were not affected and, even assuming he did
establish plain error, we would not exercise our discretion to
correct the error, we affirm.
“When a term of supervised release is revoked and the
defendant is required to serve a term of imprisonment, the court
may include a requirement that the defendant be placed on a term
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of supervised release after imprisonment.” 18 U.S.C. § 3583(h);
United States v. Winfield, 665 F.3d 107, 110 (4th Cir. 2012)
(“under § 3583(h), a district court may require the defendant to
serve an additional term of supervised release following re-
incarceration”); United States v. Leon, 663 F.3d 552, 554 n.1
(2d Cir. 2011) (“the statute in its current form clearly permits
district courts to impose a combination of post-revocation
imprisonment and additional supervised release”), cert. denied,
132 S. Ct. 1777 (2012).
Because Lemaster did not object to the district
court’s sentence, our review is for plain error. To satisfy the
plain error standard an appellant must show: “(1) an error was
made; (2) the error is plain; and (3) the error affects
substantial rights.” United States v. Massenburg, 564 F.3d 337,
342-43 (4th Cir. 2009). Even if Lemaster satisfies these
requirements, correction of the error lies within the court’s
discretion, if the court concludes that the error “seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 343 (internal quotation marks omitted).
Lemaster bears the burden of establishing each of the elements
of plain error review. Id.We conclude that there was no plain error because
Lemaster received the sentence he bargained for in the plea
agreement. Lemaster argues that he may be prejudiced by the
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sentence, if, in the future, he violates a condition of
supervised release. Such speculation is insufficient to
establish prejudice. See, e.g., Lane v. Williams, 455 U.S. 624,
633 n.13 (1982) (speculative claim by defendant that parole
violations could affect a subsequent parole violation was
rejected because defendant was “able — and indeed required by
law — to prevent such a possibility from occurring”). Even if
Lemaster did establish plain error, we would not exercise our
discretion to correct the error because the sentence does not
affect the fairness, integrity or public reputation of the
proceedings.
Accordingly, we affirm the judgment of conviction, the
orders revoking supervised release and the sentences. 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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