United States v. Pratt , 392 F. App'x 152 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4642
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROBERT LEWIS PRATT,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00094-JAB-1)
Submitted: June 17, 2010 Decided: August 20, 2010
Before MOTZ, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian M. Aus, Durham, North Carolina, for Appellant. Graham Tod
Green, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Robert Lewis Pratt appeals the district court’s
judgment revoking his supervised release and sentencing him to
thirty months’ imprisonment. Pratt’s counsel filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), stating
that there are no meritorious issues for appeal, but questioning
the reasonableness of Pratt’s sentence on the ground that it was
premised upon an improper calculation of the Chapter Seven
policy statement range in the federal sentencing guidelines.
Specifically, counsel questions whether the district court
properly concluded that Pratt committed a Grade A violation of
supervised release. Pratt was advised of his right to file a
pro se supplemental brief, but he did not file one.
We review a sentence imposed as a result of a
supervised release violation to determine whether it is 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 is unreasonable. Id. at 438. This
court, in determining reasonableness, follows generally the
procedural and substantive considerations employed in reviewing
original sentences. Id. However, “[t]his 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,
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656 (4th Cir. 2007) (quoting Crudup, 461 F.3d at 438). If a
sentence imposed after a revocation is not unreasonable, we will
not proceed to the second prong of the analysis — whether the
sentence was plainly unreasonable. Crudup, 461 F.3d at 439.
Under U.S. Sentencing Guidelines Manual § 7B1.1(a)(1)
(2007), 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, and that are punishable by more than a
year in prison. USSG §§ 4B1.2(b), 7B1.1 cmt. (n.3). 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).
Pratt argues that his most serious supervised release
violation was possession of cocaine, a Grade B violation, and
that he cannot be deemed to have committed a Grade A violation
because the North Carolina state charges against him that
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amounted to a Grade A violation were dismissed. 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 Pratt 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) (2006).
Here, Pratt originally had been charged with
possession with intent to manufacture, sell, or deliver Schedule
II and VI controlled substances, in violation of N.C. Gen. Stat.
§ 90-95(b)(1), (2) (2007), punishable by more than a year in
prison. N.C. Gen. Stat. § 15A-1340.17(c), (d) (2007). Although
these charges ultimately were dismissed, Pratt admitted to
conduct constituting the felony controlled substance offense of
possession with intent to distribute a controlled substance,
when he acknowledged that he had been using drugs with “some
girls” and “ran out to get more drugs.” See State v. Mack, 656
S.E.2d 1, 13 (N.C. Ct. App. 2008) (discussing elements of N.C.
Gen. Stat. § 90-95(a) offense). Accordingly, we conclude that a
preponderance of the evidence supported the district court’s
finding that Pratt committed a Grade A violation.
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In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the judgment revoking Pratt’s supervised
release and imposing a thirty-month term of imprisonment. This
court requires that counsel inform Pratt, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Pratt 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 thereof
was served on Pratt. 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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