United States v. Strickland , 405 F. App'x 807 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4240
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES ANTONIO STRICKLAND, a/k/a Stricknine,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:97-cr-00135-F-1)
Submitted: December 16, 2010 Decided: December 27, 2010
Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:
James Strickland appeals from the sixty-month
sentence imposed pursuant to the revocation of his supervised
release. Strickland contends the sentence was plainly
unreasonable because the court erred in determining he had
committed a Grade A violation and in considering a prior
reduction to his original sentence based on the retroactive
amendment to the crack cocaine sentencing guideline. We affirm.
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, we first consider whether the
sentence is 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 guideline sentences.” United States v. Moulden, 478 F.3d
652, 656 (4th Cir. 2007). In making our review, we “follow
generally the procedural and substantive considerations that
[are] employ[ed] in [the] review of original sentences, . . .
with some necessary modifications to take into account the
unique nature of supervised release revocation sentences.”
Crudup, 461 F.3d at 438-39.
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A sentence imposed upon revocation of release is
procedurally reasonable if the district court considered the
Chapter Seven policy statements and the 18 U.S.C. § 3553(a)
(2006) factors that it is permitted to consider. See 18 U.S.C.
§ 3583(e) (2006); Crudup, 461 F.3d at 438-40. 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, up to the
statutory maximum. Crudup, 461 F.3d at 440. We will affirm if
the sentence is not unreasonable. Id. at 439. Only if a
sentence is found procedurally or substantively unreasonable
will we “decide whether the sentence is plainly unreasonable.”
Id.Strickland argues that the district court erred in
concluding that his most serious new law violation was a Grade A
violation rather than a Grade B 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), p.s.. A controlled substance offense for
purposes of § 7B1.1(a)(1), p.s., 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
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year in prison. USSG §§ 4B1.2(b), 7B1.1, p.s., comment. (n.3).
Any other offense punishable by more than a year in prison is a
Grade B violation. USSG § 7B1.1(a)(2), p.s.. 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); 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).
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).
Strickland contends that his supervised release
violation was a Grade B violation because the drugs he admitted
to possessing were for his personal use and not intended for
distribution. We conclude that Strickland failed to demonstrate
that the court erred in finding by a preponderance of the
evidence that the drugs were intended for distribution and not
personal use. The court did not err in determining that
Strickland’s conduct constituted a Grade A violation nor abuse
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its discretion in considering its prior reduction of his
sentence, and Strickland has not shown that the sixty-month
sentence was plainly unreasonable.
We therefore affirm the sentence. 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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