United States v. Roland Ware ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4797
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROLAND WARE, a/k/a Finesse, a/k/a Fetti,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:07-cr-00176-D-4)
Submitted: January 28, 2016 Decided: February 8, 2016
Before MOTZ and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ronald Ware appeals from the revocation of his supervised
release and the imposition of a prison term of 36 months. On
appeal, Ware argues that his sentence exceeds the statutory
maximum allowed for a revocation of supervised release, given
the 12 months previously served on his prior revocation. He
contends that his plea agreement limited the aggregate total
amount of time he could serve upon revocation of supervised
release to three years. In the alternative, he argues that his
plea agreement was ambiguous as to whether the three-year limit
was an aggregate limit or a per-violation limit. We affirm.
At the outset, we note that the parties disagree as to what
standard of review to employ. The Government contends that Ware
did not raise this claim of error below, and thus it should be
reviewed for plain error. Ware counters that his counsel,
although agreeing with the policy statement range announced by
the district court, objected to the three-year statutory
maximum. Our review of the transcript confirms that defense
counsel objected to the statutory maximum. However, he did not
articulate that his objection was based on violation of the plea
agreement by use of a per-violation basis to calculate the
statutory maximum sentence. We need not resolve this dispute
because Ware’s issue does not survive de novo review. See
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United States v. Under Seal, 709 F.3d 257, 261 (4th Cir. 2013)
(questions of statutory interpretation are reviewed de novo).
Ware’s plea agreement, entered into in November 2007,
specifies “Maximum term of supervised release: 5 years [and]
Maximum term of imprisonment upon revocation of supervised
release: 3 years.” Ware therefore argues that the court’s
three-year second revocation sentence altered the terms of his
plea agreement.
A district court may revoke a term of supervised release
and impose a term of imprisonment after “find[ing] by a
preponderance of the evidence that the defendant violated a
condition of supervised release.” 18 U.S.C. § 3583(e)(3)
(2012). “[A] defendant whose term is revoked . . . may not be
required to serve on any such revocation more than . . . 3 years
in prison if such offense is a class B felony . . . .” Id.
Under a prior version of this statute, this court
“assume[d] without deciding[] that § 3583(e)(3)’s maximum prison
term limits the total prison time that may be imposed for
multiple violations of supervised release.” United States v.
Hager, 288 F.3d 136, 137 (4th Cir. 2002). Section 3583 was
amended in 2003, however, by the Prosecutorial Remedies and
Other Tools to End the Exploitation of Children Today Act of
2003 (“PROTECT Act” or “Act”). The Act added the phrase “on any
such revocation” to § 3583(e)(3). Every Circuit to address the
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amended version of § 3583(e)(3) has concluded that “prior time
served for violations of supervised release is not credited
towards and so does not limit the statutory maximum that a court
may impose for subsequent violations of supervised release.”
United States v. Perry, 743 F.3d 238, 241-42 (7th Cir. 2014)
(collecting cases); see also United States v. Tapia-Escalera,
356 F.3d 181, 188 (1st Cir. 2004) (noting that, through the
PROTECT Act, “Congress has altered the statute to adopt the
government’s position” that the terms of imprisonment do not
aggregate (emphasis omitted)). We agree.
Ware’s plea agreement was executed well after the date of
enactment of the revised § 3583(e). Further, he entered into it
after at least two Circuit Court decisions upholding the
per-violation maximum. See Tapia-Escalera, 356 F.3d at 188;
United States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005),
abrogated on other grounds. “Applying standard contract law, we
enforce a plea agreement’s plain language in its ordinary sense
and do not write the contracts of the parties retroactively, but
merely construe the terms of the contract the parties previously
signed.” United States v. Jordan, 509 F.3d 191, 195 (4th Cir.
2007) (internal quotation marks and citations omitted). The
terms of the plea agreement were clear and Ware does not contend
that he would not have entered into it had he understood that
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the revocation sentence statutory maximum was per-violation and
not an aggregate of revocation sentences.
Ware’s alternative argument that his plea agreement was
ambiguous is likewise unavailing. Nothing in the record
indicates that his plea was unknowing or involuntary due to a
misunderstanding about the statutory maximum sentence applicable
on supervised release revocation. The statutory maximum was
revised four years prior to Ware entering into the plea
agreement. At the Fed. R. Crim. P. 11 hearing, Ware confirmed
that he understood the terms of his plea agreement. “[T]he law
ordinarily considers a waiver knowing, intelligent, and
sufficiently aware if the defendant fully understands the nature
of the right and how it would likely apply in general in the
circumstances — even though the defendant may not know the
specific detailed consequences of invoking it.” United
States v. Ruiz, 536 U.S. 622, 629 (2002). The plea agreement
constituted the entire understanding between the parties and
Ware confirmed at the Rule 11 hearing that there were no other
agreements between the parties. Under these circumstances, we
determine that there was no ambiguity in the plea agreement such
that an interpretation that goes against the plain statutory
language and case law should be applied.
Thus, we conclude that the district court properly
determined that Ware’s prior revocation sentence did not limit
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the statutory maximum available and, therefore, Ware’s sentence
does not exceed the statutory maximum or violate the terms of
his plea agreement. 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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