United States v. James Oxendine ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4895
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES THOMAS OXENDINE,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:08-cr-00051-JPJ-1)
Submitted: September 29, 2015 Decided: October 9, 2015
Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant. Anthony P. Giorno, Acting United States Attorney,
Jean B. Hudson, Assistant United States Attorney,
Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Thomas Oxendine appeals his 36-month sentence for
violation of his supervised release. Oxendine argues that his
revocation sentence is plainly unreasonable because the district
court used the wrong criminal history category in calculating
the policy statement range. We affirm.
After pleading guilty to aiding and abetting the possession
with intent to distribute cocaine base, in violation of
18 U.S.C. § 2 (2012) and 21 U.S.C. § 841 (2012), Oxendine was
sentenced in 2010 to 36 months in prison, to be followed by a 6-
year term of supervised release. Oxendine’s supervised release
commenced on January 14, 2011. While on supervised release,
Oxendine committed new criminal offenses, to which he pled
guilty in 2014.
Also in 2014, Oxendine’s probation officer petitioned the
court to revoke Oxendine’s supervised release imposed on the
2010 conviction. At the revocation hearing, Oxendine did not
contest the violation, nor did he object to the probation
officer’s calculation of the applicable policy statement range
as 33 to 36 months’ imprisonment. * The Government, apparently
unaware of the 36-month statutory maximum, advocated for a
*
Although the policy statement range provided a 33 to 41
month range, that range was limited by the 3-year statutory
maximum. 18 U.S.C. § 3583(e)(3) (2012).
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sentence of 41 months, and Oxendine sought a sentence below the
range. The district court ultimately sentenced Oxendine to the
statutory maximum revocation sentence of 36 months.
For the first time on appeal, Oxendine challenges the
calculation of the policy statement range, arguing that the
district court erred in utilizing Oxendine’s 2014 criminal
history category of VI rather than his 2010 criminal history
category of V. We review for plain error “a sentencing issue
that was not properly preserved in the district court.” United
States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015).
“To satisfy plain error review, the defendant must establish
that: (1) there is a sentencing error; (2) the error is plain;
and (3) the error affects his substantial rights.” Id. “In the
sentencing context, the third prong . . . is satisfied if there
is a non-speculative basis in the record to conclude that the
district court would have imposed a lower sentence upon the
defendant but for the error.” United States v. McLaurin, 764
F.3d 372, 388 (4th Cir. 2014) (internal quotation marks
omitted), cert. denied, 135 S. Ct. 1842, 1843 (2015). Moreover,
even if all three of these elements are satisfied, we should not
correct the error “unless the error seriously affects the
fairness, integrity or public reputation of judicial
proceedings.” Aplicano-Oyuela, 792 F.3d at 422 (internal
quotation marks omitted).
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As the Government correctly concedes, the district court
erred in calculating Oxendine’s policy statement range based on
his 2014 criminal history category rather than his 2010 criminal
history category, and the error was plain. See U.S. Sentencing
Guidelines Manual, § 7B1.4 p.s., cmt. n.1 (2013) (directing use
of criminal history category as “determined at the time the
defendant originally was sentenced to the term of supervision”).
The correct policy statement range was 30 to 36 months, rather
than the 33 to 36 months noted in the probation officer’s
violation report. However, Oxendine fails to argue, and nothing
in the record indicates, any nonspeculative basis for concluding
that the district court would not have arrived at the same 36-
month sentence absent this error.
Accordingly, we conclude that Oxendine’s challenge to his
revocation sentence cannot withstand plain error review as he
has not established that the error affected his substantial
rights. We therefore affirm the district court’s judgment. 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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