United States v. Phillip Burton , 587 F. App'x 64 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4152
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
PHILLIP MICHAEL THOMAS BURTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Max O. Cogburn, Jr.,
District Judge. (3:11-cr-00411-MOC-1)
Submitted: October 16, 2014 Decided: October 20, 2014
Before MOTZ, WYNN, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Seth Neyhart, Chapel Hill, North Carolina, for Appellant.
Thomas A. O’Malley, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina; Amy Elizabeth Ray, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Phillip Michael Thomas Burton pled guilty to
conspiracy to import MDMA or Ecstasy and importation of MDMA or
Ecstasy. In April 2009, the district court sentenced Burton to
forty-two months’ imprisonment, to be followed by thirty-six
months of supervised release. In December 2011, Burton was
released from incarceration. In January 2014, Burton was before
the district court on a supervised release violation. The court
found that Burton committed a Level A violation based on an
incident that involved his arrest for possession of 108 grams of
marijuana. The court revoked his supervised release and imposed
a twenty-one-month sentence. Burton’s counsel has filed a brief
pursuant to Anders v. California, 686 U.S. 738 (1967), stating
that there are no meritorious issues for appeal, but questioning
whether the court clearly erred in determining that Burton
committed the Grade A violation and whether the sentence was
plainly unreasonable. Finding no clear error, we affirm.
We review a district court’s decision to revoke
supervised release for abuse of discretion. United States v.
Pregent, 190 F.3d 279, 282 (4th Cir. 1999). To revoke release,
the district court must find a violation of a condition of
release by a preponderance of the evidence. 18 U.S.C.
§ 3583(e)(3) (2012). We review for clear error factual findings
underlying the conclusion that a violation of the terms of
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supervised release occurred. See United States v. Carothers,
337 F.3d 1017, 1019 (8th Cir. 2003).
We conclude that the district court did not abuse its
discretion in finding that Burton violated the conditions of
supervised release by possessing marijuana. The Government
presented evidence that police officers found a mason jar full
of marijuana in the car in which Burton was driving and that a
strong aroma of marijuana came from the car and Burton’s person.
Based on this and other evidence, the district court found it
more likely than not that Burton possessed the marijuana.
Possession can be actual or constructive. United States v.
Burgos, 94 F.3d 849, 873 (4th Cir. 1996). Constructive
possession can be shown by evidence of dominion and control over
the drugs themselves or over the premises or vehicle in which
the contraband is found. United States v. Blue, 957 F.2d 106,
107 (4th Cir. 1992).
Viewed in the light most favorable to the Government,
see United States v. Green, 599 F.3d 360, 367 (4th Cir. 2010),
we find no clear error in the district court’s determination
that Burton committed the Grade A violation of his supervised
release. See United States v. White, 620 F.3d 401, 410 (4th
Cir. 2010); see also United States v. Stevenson, 396 F.3d 538,
542 (4th Cir. 2005) (providing that court of appeals will not
reverse factual finding if district court’s view of the evidence
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is plausible in light of the totality of the evidence, even if
the appeals court would have resolved the facts differently).
Next, Burton specifically questions whether the
district court correctly calculated his criminal history
category and whether the court sufficiently articulated the
reasons for the sentence imposed. He also generally questions
the substantive reasonableness of his sentence.
The district court has broad discretion in determining
a sentence upon revocation of supervised release. United
States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). In examining
a sentence imposed upon revocation of supervised release, we
“take[] a more deferential appellate posture concerning issues
of fact and the exercise of discretion than reasonableness
review for [G]uidelines sentences.” United States v. Moulden,
478 F.3d 652, 656 (4th Cir. 2007) (internal quotation marks
omitted). We will affirm a revocation sentence that falls
within the statutory maximum, unless we find the sentence to be
“plainly unreasonable.” United States v. Crudup, 461 F.3d 433,
437 (4th Cir. 2006). In reviewing a revocation sentence, we
must first determine “whether the sentence is unreasonable,”
using the same general analysis employed to review original
sentences. Id. at 438. Only if we find a sentence to be
procedurally or substantively unreasonable will we determine
whether the sentence is “plainly” so. Id. at 439.
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A revocation sentence is procedurally reasonable if
the district court has considered both the applicable 18 U.S.C.
§ 3553(a) (2012) factors and the policy statements contained in
Chapter Seven of the Guidelines. Crudup, 461 F.3d at 440. The
district court also must provide an explanation of its chosen
sentence, although this explanation “need not be as detailed or
specific” as is required for an original sentence. United
States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). We have
reviewed the record and conclude that the sentence imposed by
the district court was not plainly unreasonable.
We therefore affirm the revocation judgment and the
twenty-one-month sentence. 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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