United States v. Lashaun Perry ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-2962
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Lashaun Maurice Perry, also known as Bishop
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: March 14, 2019
Filed: April 2, 2019
[Unpublished]
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Before GRUENDER, SHEPHERD, and STRAS, Circuit Judges.
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PER CURIAM.
Lashaun Perry directly appeals after the district court1 revoked his supervised
release and sentenced him within the calculated Chapter 7 Guidelines range. His
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
counsel has moved for leave to withdraw and has filed a brief suggesting that the
revocation sentence is unreasonable because it was based in part on an erroneously
calculated criminal history category. In a pro se brief, Perry asserts several
arguments.
As to the issue raised by counsel, we conclude that the district court did not
plainly err in calculating the Chapter 7 Guidelines range using a Category IV criminal
history because the district court had applied a Category IV criminal history at Perry’s
original sentencing, and there was no evidence to support Perry’s claim that one of
his prior convictions had been expunged. See United States v. Miller, 557 F.3d 910,
916 (8th Cir. 2009) (“Procedural sentencing errors are forfeited, and therefore may
be reviewed only for plain error, if no objection was raised in the district court.”); see
also U.S.S.G. § 7B1.4 (stating that, at revocation, the criminal-history category is the
category applicable at the time the defendant was originally sentenced to a term of
supervision).
As to Perry’s pro se arguments, we decline to consider any ineffective-
assistance issues. See United States v. Hughes, 330 F.3d 1068, 1069 (8th Cir. 2003)
(indicating that ineffective-assistance claims are more properly raised in collateral
proceedings). Next, we conclude that Perry was not entitled to any credit toward his
new term of supervised release for time he served on probation. See 18 U.S.C.
§ 3583(h) (providing that a district court may, following revocation, “include a
requirement that the defendant be placed on a term of supervised release after
imprisonment” that “shall not exceed the term of supervised release authorized by
statute for the offense that resulted in the original term of supervised release, less any
term of imprisonment” that was imposed after revocation, but not stipulating that the
length is less the supervised release time already served). We further conclude that
the district court properly calculated the Chapter 7 Guidelines range by using a
Grade B violation, as the Grade B classification was justified by Perry’s actual
conduct. See United States v. Mendoza, 782 F.3d 1046, 1048 (8th Cir. 2015) (per
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curiam) (explaining that the grade of a violation is based on the defendant’s actual
conduct, not the conduct that is the subject of criminal charges). Finally, we conclude
that the district court did not abuse its discretion either in deciding to revoke Perry’s
supervised release or in imposing the revocation sentence. See Miller, 557 F.3d at
914 (“We review a district court’s decision to revoke supervised release for an abuse
of discretion and the court’s underlying ‘factual findings as to whether a violation
occurred’ for clear error.”); United States v. Petreikis, 551 F.3d 822, 824 (8th Cir.
2009) (explaining that “[w]e review a revocation sentence under the same
‘reasonableness’ standard that applies to initial sentencing proceedings” and that a
within-Guidelines-range sentence is accorded a presumption of reasonableness on
appeal). We therefore affirm, and we grant counsel’s motion for leave to withdraw.
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