United States v. Thomas , 424 F. App'x 254 ( 2011 )


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  •                               UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 10-4724
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    v.
    FRANCISCO ANDRE THOMAS,
    Defendant - Appellant.
    Appeal from the United States District Court for the District of
    South Carolina, at Charleston.    Patrick Michael Duffy, Senior
    District Judge. (2:99-cr-00460-PMD-4)
    Submitted:   March 28, 2011                 Decided:   April 22, 2011
    Before KING, AGEE, and KEENAN, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Mary   Gordon   Baker,  Assistant   Federal  Public  Defender,
    Charleston, South Carolina, for Appellant.  Matthew J. Modica,
    Assistant United States Attorney, Charleston, South Carolina,
    for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Francisco      Andre   Thomas    appeals    the    district   court’s
    judgment revoking his supervised release and sentencing him to
    thirty months     of    imprisonment.       Thomas’     counsel    has   filed    a
    brief pursuant to Anders v. California, 
    386 U.S. 738
     (1967),
    stating that there are no meritorious issues for appeal, but
    questioning whether the district court abused its discretion in
    classifying     new    criminal   conduct   as    a   Grade   A   violation   and
    whether Thomas’ sentence was unreasonable.               Although advised of
    his right to file a supplemental pro se brief, Thomas has not
    done so.
    In    January    2010,   Thomas’      probation    officer    filed    a
    petition alleging two violations of supervised release:                       (1)
    failure to refrain from use of controlled substances, based on
    three positive tests for marijuana (a Grade C violation), and
    (2) a state conviction for conspiracy to possess cocaine.                        At
    the revocation hearing, Thomas argued that although he had been
    charged in the state court with trafficking cocaine, he pled
    guilty to drug conspiracy to possess cocaine and therefore, the
    conviction should count as a Grade B — and not a Grade A —
    violation.      The district court disagreed, concluding that the
    state conviction should be counted as a Grade A violation, based
    on the totality of the circumstances surrounding Thomas’ arrest.
    With a criminal history category of I, the advisory guidelines
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    range was twenty-four to thirty-four months; the court imposed a
    thirty-month    term    of    imprisonment.          Thomas   noted    a    timely
    appeal.
    We    review      a     district    court’s    judgment         revoking
    supervised release and imposing a term of imprisonment for abuse
    of discretion.    United States v. Pregent, 
    190 F.3d 279
    , 282 (4th
    Cir. 1999).     To revoke supervised release, a district court need
    only find a violation of a condition of supervised release by a
    preponderance of the evidence.              
    18 U.S.C. § 3583
    (e)(3) (2006).
    This burden “simply requires the trier of fact to believe that
    the existence of a fact is more probable than its nonexistence.”
    United States v. Manigan, 
    592 F.3d 621
    , 631 (4th Cir. 2010)
    (internal quotation marks omitted).            Appellate courts review the
    district   court’s     factual      findings   for    clear   error.        United
    States v. Carothers, 
    337 F.3d 1017
    , 1019 (8th Cir. 2003); United
    States v. Whalen, 
    82 F.3d 528
    , 532 (1st Cir. 1996).                    There is
    clear error if the court, after reviewing the record, is left
    with “a definite and firm conviction that a mistake has been
    committed.”     Anderson v. City of Bessemer City, N.C., 
    470 U.S. 564
    , 573 (1985) (internal quotation marks and citation omitted).
    It is not enough for the court to conclude it would have decided
    the case differently.        
    Id.
    Thomas claims first that the district court committed
    clear error in concluding that his new criminal conduct was a
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    Grade A violation.         A Grade A violation results from “conduct
    constituting a federal, state, or local offense punishable by a
    term   of   imprisonment     exceeding      one    year       that      .   .   .   is     a
    controlled    substance      offense.”           USSG     §     7B1.1(a)(1).               A
    “controlled   substance     offense”       for    purposes         of   §   7B1.1(a)(1)
    includes state or federal crimes prohibiting the distribution of
    a   controlled   substance,     as     well       as    the        possession       of     a
    controlled substance with the intent to distribute, that are
    punishable by more than a year in prison.                      USSG §§ 4B1.2(b),
    7B1.1 cmt. (n.3).      Any other offense punishable by more than a
    year in prison is a Grade B violation.                 USSG § 7B.1(a)(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.,
    cmt. (n.1); see United States v. Jolibois, 
    294 F.3d 1110
    , 1114
    (9th Cir. 2002) (violation of terms of supervised release is
    determined based on defendant’s conduct and may be found whether
    defendant was ever convicted of any particular offense).                                  We
    find no error in the district court’s conclusion that Thomas’
    conduct warranted an inference that he intended to distribute
    the drugs at issue in his state court proceedings; accordingly,
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    the district court did not clearly err in concluding that his
    conviction constituted a Grade A violation.
    Next, counsel questions the reasonableness of Thomas’
    sentence.       A sentence imposed after revocation of supervised
    release    should      be   affirmed          if    it    is    within      the     applicable
    statutory    maximum        and    is    not       plainly      unreasonable.          United
    States v. Crudup, 
    461 F.3d 433
    , 439-40 (4th Cir. 2006).                                      In
    making this determination, this court first considers whether
    the   sentence         imposed          is     procedurally            or        substantively
    unreasonable.         
    Id. at 438
    .            “This initial inquiry takes a more
    deferential appellate posture concerning issues of fact and the
    exercise of discretion than reasonableness review for guidelines
    sentences.”          United States v. Moulden, 
    478 F.3d 652
    , 656 (4th
    Cir. 2007) (internal quotation marks omitted).
    A    sentence         imposed      upon       revocation        of    release   is
    procedurally     reasonable         if       the   district       court     considered      the
    Chapter Seven policy statements and the applicable 
    18 U.S.C. § 3553
    (a) (2006) factors, see 
    18 U.S.C. § 3583
    (e); Crudup, 
    461 F.3d at 438-40
    , and adequately explained the sentence imposed,
    United States v. Thompson, 
    595 F.3d 544
    , 547 (4th Cir. 2010).                                 A
    sentence    imposed      upon      revocation        of    release       is      substantively
    reasonable      if    the   district         court       stated    a   proper       basis   for
    concluding      that     the      defendant         should       receive      the     sentence
    imposed, within the statutory maximum.                         Crudup, 
    461 F.3d at 440
    .
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    This court will affirm if the sentence is not unreasonable.                                    
    Id. at 439
    .          Only   if      a    sentence           is    found      procedurally         or
    substantively unreasonable will the court “decide whether the
    sentence is plainly unreasonable.”                     
    Id.
           “[T]he court ultimately
    has broad discretion to revoke its previous sentence and impose
    a    term    of    imprisonment        up   to       the    statutory         maximum.”         
    Id.
    (internal quotation marks omitted).
    Here, we have reviewed the record and conclude that
    the district court did not impose an unreasonable sentence, let
    alone one that is plainly so.                  Thomas received a sentence within
    the Guidelines range for his offense, and the court offered an
    adequate      explanation         to   preserve        the      sentence      upon    appellate
    review.           The   district       court     initially         considered        an   upward
    departure based on Thomas’ repeated violations of the conditions
    of his supervised release; however, the court ultimately decided
    to impose a sentence within the guidelines range because Thomas
    had an eighteen-month state sentence to serve in addition to his
    federal      sentence.          Accordingly,           we       find    the    sentence        both
    procedurally and substantively reasonable.
    Therefore, we affirm Thomas’ sentence.                            In accordance
    with Anders, we have reviewed the entire record for meritorious
    issues and have found none.                    We therefore affirm.                  This court
    requires      that      counsel    inform      her     client,         in   writing,      of   his
    right to petition the Supreme Court of the United States for
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    further   review.     If    the   client   requests       that   a   petition   be
    filed,    but   counsel    believes   that   such     a    petition    would    be
    frivolous, then counsel may move in this court for leave to
    withdraw from representation.         Counsel’s motion must state that
    a copy was served on the client.           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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