United States v. Washington , 336 F. App'x 343 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4839
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EMMANUEL WASHINGTON,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
District Judge. (3:00-cr-00063-nkm-14)
Submitted: June 10, 2009 Decided: July 2, 2009
Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David L. Heilberg, DYGERT, WRIGHT, HOBBS & HEILBERG, PLC,
Charlottesville, Virginia, for Appellant. Julia C. Dudley,
United States Attorney, Ronald M. Huber, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Emmanuel Washington appeals the district court’s
judgment imposing a 27-month prison sentence upon the revocation
of his supervised release. Although Washington does not contest
the revocation on appeal, he maintains that the district court’s
sentence is not reasonable as it was premised upon an improper
calculation of the Chapter Seven policy statement range, see
U.S. Sentencing Guidelines Manual (“USSG”) (2007), because the
state crimes for which he was convicted do not fit the criteria
for a Grade A violation. He also contends that the district
court impermissibly considered testimonial hearsay, in violation
of the Sixth Amendment’s Confrontation Clause, and erred in
considering conduct for which he was acquitted in state court.
Finally, he argues that the district court failed to consider
the 18 U.S.C. § 3553(a) (2006) factors and to provide a
sufficient explanation for the 27-month sentence. We affirm.
We review a sentence imposed after revocation of
supervised release to determine whether it is plainly
unreasonable. United States v. Crudup, 461 F.3d 433, 437-40
(4th Cir. 2006). The first step in this analysis is whether the
sentence was unreasonable. Id. at 438. In conducting this
review, this court follows generally the procedural and
substantive considerations employed in reviewing original
sentences. Id. The district court commits procedural error by
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improperly calculating the Guidelines. Gall v. United States,
552 U.S. 38, 128 S. Ct. 586, 597 (2007). In assessing whether
the district court properly applied the Guidelines, we review
the district court’s factual findings for clear error and its
legal conclusions de novo. United States v. Osborne, 514 F.3d
377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). For
mixed questions of law and fact, we apply a due deference
standard in reviewing the district court. Id.Although the district court must consider the policy
statements in Chapter Seven of the Sentencing Guidelines and the
statutory factors in § 3553(a) and 18 U.S.C. § 3583, “the court
ultimately has broad discretion to revoke its previous sentence
and impose a term of imprisonment up to the statutory maximum.”
Crudup, 461 F.3d at 439 (quoting United States v. Lewis, 424
F.3d 239, 244 (2d Cir. 2005)) (internal quotation marks
omitted). Finally, on review, we will assume a deferential
appellate posture concerning issues of fact and the exercise of
discretion. Id.Because Washington did not object to the district
court’s finding that he committed a Grade A violation of the
terms of his supervised release, we review this claim for plain
error. United States v. Olano, 507 U.S. 725, 732 (1993). Under
the plain error standard, Washington must show: (1) there was
error; (2) the error was plain; and (3) the error affected his
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substantial rights. Id. Even when these conditions are
satisfied, this court may exercise its discretion to notice the
error only if the error “seriously” affects the “fairness,
integrity, or public reputation of judicial proceedings.” Id.
at 736 (internal quotation marks omitted).
Under USSG § 7B1.1(a)(1), p.s., a state offense
punishable by a term of imprisonment exceeding one year that is
a “crime of violence” constitutes a Grade A violation of a
defendant’s supervised release. The term “crime of violence”
includes any offense punishable by a term of imprisonment
exceeding one year that “has as an element the use, attempted
use, or threatened use of physical force against the person of
another” or “involves use of explosives [] or otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” USSG § 4B1.2(a)(1) & (2); see USSG § 7B1.1,
p.s., comment. (n.2).
The commentary to USSG § 7B1.1, p.s. emphasizes that
the “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
violation is to be based on the defendant’s actual conduct.”
USSG § 7B1.1, p.s., comment. (n.1). In this case, Washington
was charged under Virginia law with, among other offenses,
abduction and malicious wounding, both felonies punishable by a
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year or more in prison. See Va. Code Ann. §§ 18.2-47(A), 18.2-
51 (West 2007). These crimes meet the requirements of USSG
§ 7B1.1(a)(1)(A), p.s. in that they are state crimes of violence
punishable by more than one year’s imprisonment. See Va. Code
Ann. § 18.2-10 (West 2007). Thus, they constitute Grade A
violations.
Washington argues that because he was ultimately
convicted of two state misdemeanors, he cannot be deemed to have
committed a Grade A violation of his supervised release. This
is simply incorrect. A violation of the terms of supervised
release is determined on the basis of a defendant’s conduct and
may be found whether Washington was ever convicted of any
particular offense. See United States v. Jolibois, 294 F.3d
1110, 1114 (9th Cir. 2002). Further, although a conviction
requires proof beyond a reasonable doubt, a violation of
supervised release need only be proved by a preponderance of the
evidence, see 18 U.S.C. § 3583(e)(3).
As to the evidence the district court considered in
finding a Grade A violation, Washington lodges two challenges.
First, Washington asserts that his Sixth Amendment right to
confrontation, as elucidated in Crawford v. Washington, 541 U.S.
36, 68 (2004), was violated because the district court
considered testimonial hearsay in the Probation Officer’s
violation report. Washington’s Sixth Amendment claim fails,
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however, as Crawford does not apply to supervised release
revocation proceedings because they are not “criminal
prosecutions” under the Sixth Amendment. See United States v.
Kelley, 446 F.3d 688, 691-92 (7th Cir. 2006); United States v.
Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005); United States v.
Hall, 419 F.3d 980, 985-86 (9th Cir. 2005); United States v.
Kirby, 418 F.3d 621, 627 (6th Cir. 2005); United States v.
Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004).
Relying on United States v. Booker, 543 U.S. 220(2005), Washington also asserts that the district court erred in
considering conduct for which he was acquitted in state court.
He reasons that his sentence violates the Sixth Amendment
because the district court, in reaching its conclusion that he
committed a Grade A violation, engaged in impermissible judicial
fact-finding. This argument is also without merit, however, as
sentencing courts may properly consider acquitted conduct in
fashioning a sentencing range, as long as the conduct is proven
by a preponderance of the evidence. See United States v. Watts,
519 U.S. 148, 155-56 (1997) (holding that “a jury’s verdict of
acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as that conduct
has been proved by a preponderance of the evidence”). This rule
remains valid, even after Booker. United States v. Mercado, 474
F.3d 654, 657-58 (9th Cir. 2007) (collecting cases), cert.
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denied, 128 S. Ct. 1736 (2008); see United States v. Benkahla,
530 F.3d 300, 312 (4th Cir. 2008) (rejecting claim that sentence
violates Sixth Amendment if it depended on judge-found facts to
survive reasonableness review as “too creative for the law as it
stands”), cert. denied, 129 S. Ct. 950 (2009); United States v.
Battle, 499 F.3d 315, 322-23 (4th Cir. 2007) (“When applying the
Guidelines in an advisory manner, the district court can make
factual findings using the preponderance of the evidence
standard.”), cert. denied, 128 S. Ct. 1121 (2008).
Washington’s Sixth Amendment claims are without merit
and the fact that he was ultimately convicted of only
misdemeanors has no bearing on the district court’s finding of a
Grade A violation. As Washington lodges no other challenge to
the district court’s calculation of the applicable policy
statement range, we discern no plain error.
Finally, Washington asserts that the district court
erred because it failed to consider the 18 U.S.C. § 3553(a)
factors and to provide a sufficient explanation for its
imposition of the sentence. Because the district court failed
to provide any explanation for why it imposed the 27-month
sentence or what sentencing factors it considered, the sentence
is at least arguably both procedurally and substantively
unreasonable. Nonetheless, we conclude that Washington’s
sentence is not “plainly” unreasonable because the sentence was
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within the recommended Guidelines range and does not exceed the
applicable statutory maximum. Further, Washington does not
assert any “clear” or “obvious” error in the sentence. See
Crudup, 461 F.3d at 439.
Accordingly, we affirm the district court’s judgment.
We also deny Washington’s pending motion to expedite decision.
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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