United States v. Terry ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4724
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRICK VERNARD TERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:99-cr-00102-BO-1)
Submitted: April 9, 2009 Decided: June 29, 2009
Before MICHAEL, SHEDD, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrick Vernard Terry appeals from the fifty-one month
sentence imposed after he was found in violation of the terms
and conditions of his supervised release. Terry alleges that
his sentence is plainly unreasonable because he was sentenced
based on a Grade A violation and his conduct only constituted a
Grade B violation.
On April 22, 2008, the Probation Officer filed a
motion for revocation against Terry, alleging that Terry
violated the terms of his supervised release by possessing a box
of ammunition for a .40 caliber semi-automatic handgun. Terry
advised Special Agent James Ament of the Bureau of Alcohol
Tobacco Firearms and Explosives (ATFE) that he purchased the
handgun from a co-worker. The supervised release violation
worksheet listed Terry’s violation as “criminal conduct,” a
Grade A violation. With a criminal history category of VI, the
range of imprisonment was 51-60 months.
Terry admitted the violation and stipulated that there
was a factual basis for it. Agent Ament testified that he
participated in the search of the residence where Terry was
staying in relation to a state probation warrant out for Terry.
A partially full box of .40 caliber ammunition was found. Agent
Ament interviewed Terry about the ammunition and whether Terry
had a gun. Terry stated that he purchased a handgun from a co-
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worker for his girlfriend’s protection when he was not at home
with her.
Agent Ament also testified that he and Terry “talked
about some drugs for awhile, and I advised Mr. Terry, I said we
[k]now you are still dealing in drugs. And he said he might be
dabbling in it a little bit to pay some bills.” (J.A. 16).
Agent Ament also testified that Terry listed several individuals
in the Rocky Mount area from whom he “felt he could get drugs.”
(J.A. 17). Terry later sent a letter to the probation office
stating that Agent Ament had made up the story about his
possible admission of drug distribution.
The district court asked the Assistant United States
Attorney for the sentencing range and she replied the range was
51 to 60 months. Defense counsel then asked the court for
leniency since Terry was subject to future prosecution. The
court pronounced a sentence of 51 months without additional
reasoning or discussion.
We review a sentence imposed as a result of a
supervised release violation to determine whether the sentence
was plainly unreasonable. United States v. Crudup, 461 F.3d
433, 437 (4th Cir. 2006). The first step in this analysis is a
determination of whether the sentence was unreasonable. Id. at
438. In determining reasonableness, we follow generally the
procedural and substantive considerations employed in reviewing
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original sentences. Id. If a sentence imposed after a
revocation is not unreasonable, the court will not proceed to
the second prong of the analysis--whether the sentence was
plainly unreasonable. Id. at 438-39. However, a court’s
improper calculation of the Guidelines range may “render a
sentence unreasonable.” United States v. Jones, 531 F.3d 163,
170 (2d Cir. 2008) (citing Gall v. United States, 128 S. Ct.
586, 597 (2008)).
Although a district court must consider the policy
statements in Chapter Seven of the Sentencing Guidelines along
with the statutory requirements of 18 U.S.C. § 3583 (2006) and
18 U.S.C. § 3553(a) (2006), “‘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. Crudup, 461 F.3d at
439.
Terry argues that his sentence is unreasonable because
he was sentenced based on a Grade A violation, but that his
violation qualified only as a Grade B violation and therefore
the Guidelines range was improperly calculated. He further
argues that his sentence is unreasonable because the district
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court did not provide a sufficient explanation of the sentence
to allow this court to review its reasonableness. Because Terry
did not raise the issue in the district court, the claim is
reviewed for plain error. See Fed. R. Crim. P. 52(b); United
States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To
demonstrate plain error, a defendant must establish that error
occurred, that it was plain, and that it affected his
substantial rights. United States v. Olano, 507 U.S. 725, 731-
32 (1993). If a defendant establishes these requirements, the
court’s “discretion is appropriately exercised only when failure
to do so would result in a miscarriage of justice, such as when
the defendant is actually innocent or the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings.” Id. at 736 (internal quotation marks
omitted).
The conduct that constituted the violation could have
brought a prosecution under 18 U.S.C. § 922(g)(1) (2006). Under
Application Note 5 of U.S. Sentencing Guidelines Manual § 7B1.1,
“possession of a firearm . . . will generally constitute a Grade
B violation, because 18 U.S.C. § 922(g) prohibits a convicted
felon from possessing a firearm.” The conduct that Terry
admitted and that was most specifically outlined in the motion
for revocation involved only the possession of ammunition and
admission that he had purchased a firearm. With a Grade B
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violation and a criminal history category of VI, the Guidelines
range would have been 21 to 27 months.
The Government argues that there was no plain error in
sentencing Terry for a Grade A violation because Agent Ament
testified that Terry admitted that he was still dealing in
drugs. A felony offense that is a controlled substance offense
is conduct that constitutes a Grade A violation. USSG
§ 7B1.1(a)(1). Agent Ament’s testimony was that Terry admitted
that he might be dabbling in distribution and provided names of
dealers from whom he could get drugs. The Government contends
that the AUSA maintained below that Terry was still dealing
drugs, and that Terry did not counter or object to this
argument.
The Guidelines state that the “grade of violation does
not depend upon the conduct that is the subject of criminal
charges or of which the defendant is convicted in a criminal
proceeding. Rather, the grade of the violation is to be based
on the defendant’s actual conduct.” USSG § 7B1.1, comment. n.1.
Therefore the Government contends that all of Terry’s alleged
conduct may be considered in determining the grade of the
violation.
The district court did not make any findings on the
alleged drug distribution. Although Terry did not contest Agent
Ament’s testimony at the hearing, he did send a letter to his
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probation officer stating that Agent Ament’s summary of his
interview with him was false. This letter was introduced as
evidence at the hearing. Further, without a firm statement from
the court that it was finding a violation based upon the alleged
drug distribution, it can be assumed that the court was
confirming the charge detailed in the motion for revocation,
which was based only on the ammunition and firearm.
As purely advisory policy statements, the sentencing
ranges provided by USSG § 7B1.4, p.s., do not bind the
sentencing court. See United States v. Davis, 53 F.3d 638, 640
n.6, 642 (4th Cir. 1995). The district court has broad
authority to revoke the supervised release sentence and impose a
term of imprisonment up to the statutory maximum. Crudup, 461
F.3d at 440. Therefore, the district court could have sentenced
Terry up to the five-year statutory maximum. However,
considering that it sentenced Terry at the lowest end of the
Guidelines range, we conclude that there exists a non-
speculative basis to infer prejudice.
We therefore vacate the judgment and remand for
further proceedings to determine whether the district court
found a Grade A or Grade B violation, calculate a new Guidelines
range, if necessary, and resentence Terry accordingly. We
dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
VACATED AND REMANDED
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