United States v. Soles , 336 F. App'x 287 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5091
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
BRIAN DEAN SOLES,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
Senior District Judge. (1:00-cr-00285-NCT-2)
Submitted: June 4, 2009 Decided: July 2, 2009
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville,
North Carolina, for Appellant. Lisa Blue Boggs, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Brian Dean Soles pled guilty pursuant to a plea
agreement to one count of bank robbery, in violation of
18 U.S.C. §§ 2, 2113(a) (1994 & Supp. IV 1999) and was sentenced
in February 2001 to 32 months’ imprisonment followed by three
years of supervised release. Soles began serving his term of
supervised release on December 20, 2002. On December 19, 2005,
the date on which Soles’ term of supervised release was set to
expire, a petition was filed in the district court alleging a
violation of supervised release. Soles had been arrested and
taken into custody on state charges in North Carolina, and a
federal detainer was lodged with state authorities. Soles,
however, was not arrested by the United States Marshal’s Service
until August 20, 2007. After a hearing on September 20, 2007,
the district court revoked Soles’ supervised release and
sentenced him to twelve months’ imprisonment and twenty-four
months’ supervised release.
On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal. Counsel questions,
however, whether Soles was entitled to a hearing under Fed. R.
Crim. P. 32.1 promptly after his arrest in North Carolina and
whether the twenty-one-month period of time between Soles’
December 2005 arrest and the September 2007 revocation hearing
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violated Soles’ constitutional and statutory rights to a speedy
trial. Counsel also questions whether the district court should
have awarded Soles sentencing credit for 506 days he spent in
state custody and questions whether Soles’ sentence upon
revocation is plainly unreasonable. We affirm.
We review for plain error counsel’s Fed. R. Crim. P.
32.1 claim and the claims of constitutional and statutory speedy
trial violations because Soles did not raise these issues in the
district court. See Fed. R. Crim. P. 52(b); United States v.
Olano, 507 U.S. 725, 731-32 (1993). We discern no plain error.
Fed. R. Crim. P. 32.1 applies only to those in custody solely
for the violation of their supervised release. See United
States v. Pardue, 363 F.3d 695, 697-98 (8th Cir. 2004).
Further, the Rule is only triggered when the defendant is taken
into federal custody for the violation of his supervised
release. See Fed. R. Crim. P. 32.1(a)(1) & (b)(1)(A). Soles
was not taken into federal custody for a violation of his
supervised release until August 20, 2007, and we conclude that
the month-long period between Soles’ federal arrest and the
revocation hearing was reasonable. See Fed. R. Crim. P.
32.1(b)(2).
Additionally, Soles had no Sixth Amendment right to a
speedy trial because supervised release revocation proceedings
are not stages of a criminal prosecution. See United States v.
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Santana, 526 F.3d 1257, 1262 (9th Cir. 2008); United States v.
House, 501 F.3d 928, 930-31 (8th Cir. 2007); United States v.
Tippens, 39 F.3d 88, 89 (5th Cir. 1994); see also United
States v. Carlton, 442 F.3d 802, 807 (2d Cir. 2006) (“[T]he
‘full panoply of rights’ due a defendant in a criminal
prosecution does not apply to revocation hearings for parole,
for probation, or for supervised release.” (citations omitted));
United States v. Work, 409 F.3d 484, 491-92 (1st Cir. 2005)
(Sixth Amendment’s right to jury trial does not extend to
supervised release revocation proceedings).
Counsel’s claim of Speedy Trial Act error is likewise
without merit. The Speedy Trial Act provides, in relevant part,
that any “information or indictment charging an individual with
the commission of an offense shall be filed within thirty days
from the date on which such individual was arrested or served
with a summons in connection with such charges.” 18 U.S.C.
§ 3161(b) (2006 & Supp. II 2008). However, the “goal of the
Speedy Trial Act is to mandate an orderly and expeditious
procedure for federal criminal prosecutions by fixing specific,
mechanical time limits within which the various progressions in
the prosecution must occur.” United States v. Taylor, 240 F.3d
425, 427 (4th Cir. 2001) (internal quotation marks and citation
omitted) (emphasis added). As supervised release revocation
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proceedings are not stages in the criminal prosecution, the
Speedy Trial Act has no applicability to them.
Counsel also questions whether the district court
should have awarded Soles sentencing credit for 506 days he
spent in state custody. Under 18 U.S.C. § 3585(b) (2006), a
“defendant shall be given credit toward the service of a term of
imprisonment for any time he has spent in official detention
prior to the date the sentence commences.” Section 3585(b),
however, does not permit a district court to determine credit at
sentencing. United States v. Wilson, 503 U.S. 329, 334 (1992).
Rather, only the Attorney General, through the Bureau of
Prisons, may compute sentencing credit. Id. at 334-35.
Therefore, as counsel correctly concedes, the district court was
without authority to order the Bureau of Prisons to give Soles
credit for time he served in North Carolina. Moreover, at the
revocation hearing, the government’s attorney indicated that
Soles may have received credit against his state sentence for
the time he spent in state custody. If so, Soles was not
entitled to have credit already applied to his state sentence
counted a second time and applied to his federal sentence for
violating the terms of his supervised release. See McClain v.
Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993).
Counsel questions whether Soles’ sentence upon
revocation is plainly unreasonable. We will affirm a sentence
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imposed after revocation of supervised release if it is within
the applicable statutory maximum and is not plainly
unreasonable. See United States v. Crudup, 461 F.3d 433, 437,
439-40 (4th Cir. 2006). We first assess the sentence for
unreasonableness, “follow[ing] generally the procedural and
substantive considerations that we employ in our review of
original sentences, . . . with some necessary modifications to
take into account the unique nature of supervised release
revocation sentences.” Id. at 438-39. If we conclude that a
sentence is not unreasonable, we will affirm the sentence. Id.
at 439. Only if a sentence is found procedurally or
substantively unreasonable will we “decide whether the sentence
is plainly unreasonable.” Id.A supervised release revocation sentence is
procedurally reasonable if the district court considered the
Chapter Seven advisory policy statement range and the 18 U.S.C.
§ 3553(a) factors that it is permitted to consider in a
supervised release revocation case. See 18 U.S.C. § 3583(e);
Crudup, 461 F.3d at 440. Such a sentence is substantively
reasonable if the district court stated a proper basis for
concluding the defendant should receive the sentence imposed, up
to the statutory maximum. Crudup, 461 F.3d at 440. A sentence
is plainly unreasonable if it is clearly or obviously
unreasonable. Id. at 439.
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Soles’ 12-month prison sentence and 24-month period of
supervised release do not exceed the applicable maximums set by
statute, and the district court properly calculated the advisory
policy statement range and sentenced Soles within that range.
Because the district court did not explain why it imposed a
twelve-month prison sentence, the sentence is at least arguably
unreasonable. However, we easily conclude that Soles’ sentence
is not “plainly” unreasonable because the sentence was within
the recommended policy statement range and the record does not
contain any basis upon which to conclude that the imposed
sentence is clearly or obviously unreasonable.
Finally, we cannot review counsel’s claim that the
district court erred by imposing the 36-month term of supervised
release in Soles’ original sentencing, as we lack jurisdiction
to examine the original sentencing proceeding in which the 36-
month term was imposed. See United States v. Johnson, 138 F.3d
115, 117-18 (4th Cir. 1998). If Soles found the term
objectionable, he should have raised this claim on direct
appeal.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Soles, in writing, of the right to
petition the Supreme Court of the United States for further
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review. If Soles 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 Soles. 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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