United States v. Jackson ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4940
LARRY JACKSON, a/k/a Eugene
Johnson,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Joseph Robert Goodwin, District Judge.
(CR-95-183)
Submitted: March 31, 2003
Decided: April 16, 2003
Before NIEMEYER and TRAXLER, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Federal Public Defender, Edward H. Weis,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Kasey Warner, United States Attorney, Stephanie L.
Haines, Assistant United States Attorney, Huntington, West Virginia,
for Appellee.
2 UNITED STATES v. JACKSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Larry Jackson appeals the district court’s sentence of nine months’
incarceration following its third revocation of his supervised release.
Jackson asserts that this term of incarceration exceeds the statutory
maximum established by the classification of his offense. Finding no
error, we affirm.
Jackson pled guilty in 1996 to conspiring to distribute unspecified
quantities of cocaine base, in violation of 21 U.S.C. § 846 (2000). The
district court imposed a thirty-seven month custodial sentence fol-
lowed by four years of supervised release. However, following Jack-
son’s initial release in 1997, he twice violated the terms of that
supervised release, for which the district court imposed twelve
months’ incarceration in 1999 and nine months’ incarceration in
2000. Contending he has already served an aggregate of twenty-five
months in custody for his prior violations of his supervised release
and citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Jackson
alleges the nine months’ incarceration the district court imposed for
the third revocation exceeds the maximum of two years’ imprison-
ment authorized for violations of a term of supervised release
imposed as punishment for a Class C felony. We disagree.
Jackson’s challenge incorrectly asserts he was originally sentenced
for committing a Class C felony. Because the count of Jackson’s
indictment to which he pled guilty did not charge quantity, Jackson
contends that only a sentence in accordance with § 841(b)(1)(C),
which is a Class C felony, see 18 U.S.C. § 3559(a) (2000), was
proper. Jackson’s written plea agreement, however, clearly contem-
plated his sentencing for the Class B felony described in
§ 841(b)(1)(B), as it noted a potential term of incarceration of five to
forty years and a supervised release term of four years. Further, evi-
dence supporting a sentence in accordance with § 841(b)(1)(B) was
UNITED STATES v. JACKSON 3
presented at Jackson’s plea hearing. Hence, because felonies are clas-
sified by the relevant statutory maximum rather than the actual sen-
tence imposed, see United States v. Gonzalez, 922 F.2d 1044, 1049
(2d Cir. 1991), and Jackson’s guilty plea subjected him to a potential
sentence of five to forty years’ incarceration, the district court’s impo-
sition of a nine-month sentence following Jackson’s third revocation
of his supervised release was proper.*
Accordingly, we affirm Jackson’s sentence. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
*Further, although we do not decide the issue today, we note several
recent decisions indicating that Apprendi is not retroactively applicable
to the revocation of a term of supervised release. See, e.g., United States
v. Greene, 206 F. Supp. 2d 811, 813-14 (S.D.W. Va. 2002).