United States v. Michael Hardison

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4444
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL EUGENE HARDISON, a/k/a Hook Shot,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:95-cr-00083-BO-1)
Argued: May 12, 2015 Decided: July 7, 2015
Before MOTZ, KING, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Earl Waters, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Kristine L. Fritz, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In 1996, Michael Eugene Hardison was sentenced in the
Eastern District of North Carolina to 204 months in prison and
five years of supervised release, following his convictions for
drug- and gun-related offenses. Hardison was released from
prison and began his term of supervised release in March 2010,
and in May 2013 the district court ruled that Hardison had
violated the conditions of his release by engaging in criminal
conduct relating to drug distribution. Supervised release was
therefore revoked, and the court imposed a statutory maximum
revocation sentence of sixty months. Hardison has appealed that
sentence, contending that it is both procedurally and
substantively unreasonable. As explained below, we affirm.
I.
Hardison’s convictions were the denouement of a lengthy
federal investigation into a Fayetteville, North Carolina drug
distribution network known as the “Long Road Boys.” Hardison
had cofounded the Long Road Boys in 1989, recruiting residents
of the Grove View Terrace public housing project to peddle
powder cocaine and cocaine base (“crack”). From the network’s
inception, Hardison and his partners-in-crime embarked on a
campaign of violence and intimidation against rival drug
distributors to protect and expand their criminal enterprise.
3
More specifically, Hardison instigated and perpetuated so-called
“turf wars” by arming his employees with semiautomatic weapons
and ordering them to shoot rival distributors.
On May 18, 1995, a federal grand jury in the Eastern
District of North Carolina indicted Hardison and eleven other
Long Road Boys on twenty drug and weapons offenses. The
indictment charged Hardison in five counts and identified him as
the group’s ringleader. On September 11, 1995, Hardison pleaded
guilty to conspiracy to possess with intent to distribute
cocaine and crack, in violation of 21 U.S.C. § 846, and to using
a firearm during and in relation to a drug trafficking crime, in
contravention of 18 U.S.C. §§ 924(c)(1) and 2. On April 9,
1996, Hardison was sentenced to 204 months in prison, to be
followed by five years of supervised release. Hardison’s term
of supervised release was subject to several conditions,
including that he submit to drug-screen urinalysis and refrain
from criminal conduct. Hardison was released from confinement
in March 2010 and commenced his term of supervised release.
On September 11, 2013, after serving more than three years
of supervised release without incident, Hardison submitted a
urine sample that was positive for cocaine. His probation
officer thus filed a motion to revoke Hardison’s supervised
release. On November 15, 2013, the district court conducted a
revocation hearing and determined that Hardison had violated the
4
terms of his supervision. Nevertheless, the court denied
revocation, determining that “the ends of justice would best be
served by . . . continuing supervision under the original terms
and conditions imposed.” J.A. 27. 1
On April 21, 2014, the probation officer filed a second
motion for revocation of supervised release, followed by an
amended motion two days later. The probation officer alleged
that Hardison had recently committed numerous drug and weapons
offenses in Cumberland County in violation of the terms of his
supervised release. The probation officer did not, however,
submit a worksheet containing a recommended sentencing range for
Hardison.
The district court conducted a second revocation hearing on
May 30, 2014, and the prosecution called Officer Aaron Hunt of
the Fayetteville Police Department as a witness. Hunt testified
that he first became aware of Hardison in early 2014 during the
course of a narcotics investigation. Hunt had witnessed
Hardison “continuously hanging out” at two Fayetteville
residences where suspected drug activity was taking place. See
J.A. 15. Hunt was informed that Hardison was the “main guy who
brought all the narcotics to [Hunt’s] target houses,” and he
1 Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.
5
opened a formal investigation into Hardison’s activities. See
id. at 16. Over the next six weeks, Hunt observed Hardison
engage in numerous hand-to-hand drug transactions with passing
vehicles. On arresting one of the buyers, Hunt was advised that
the arrestee had purchased cocaine from Hardison.
According to Officer Hunt, on April 21, 2014, the
Fayetteville police executed a search warrant on Hardison’s
home, seizing several items inside the residence that were
“indicative of manufacturing and packaging narcotics for sale.”
See J.A. 18-19. Officers also found 25.3 grams of crack and a
Colt .38 special revolver hidden in plastic bags behind the
residence. Based on Hunt’s evidence, the district court ruled
that Hardison had violated the terms of his supervised release
by possessing with intent to sell and deliver cocaine and crack,
maintaining a place for the manufacture of cocaine, and
possessing a firearm.
Hardison admitted his criminal conduct but offered several
arguments in mitigation, seeking a lenient sentence. He
emphasized that he was nearing the end of his five-year term of
supervised release, and had only one prior violation. He also
asserted that he had been gainfully employed and had a close
relationship with his siblings. Finally, Hardison pointed out
that his employer was present at the hearing and had submitted a
letter on Hardison’s behalf.
6
The district court denied Hardison’s request for leniency,
invoking Hardison’s earlier revocation hearing. The court
explained:
Did [Hardison] not understand that [the court’s prior
leniency] was an exercise in trust, T-R-U-S-T, that
the court was willing to take a chance, which turned
out to be a foolish chance and a repudiated chance,
and that the court and the government and the law put
their trust in him to be sincere about his willingness
to avoid crime and drugs and be a drug person. And
now he’s proven all of that to be mistaken. So the
punishment has to be equivalent to the breach of trust
and multiple violations.
J.A. 22. The court underscored that Hardison had made an
“absolute mockery” of the supervised release system, id. at 24,
observing that
[Hardison] really has virtually no sympathy or
position to argue here. He’s completely without any
credibility, just totally without any credibility. He
had a serious sentence that he did and now he’s been
back twice on revocation . . . . He should get the
maximum punishment.
Id. at 23.
The district court then imposed the statutory maximum
sentence of sixty months in prison. 2 That same day, the court
entered a written order setting forth its rationale for imposing
the statutory maximum sentence. See United States v. Hardison,
No. 5:95-cr-00083 (E.D.N.C. May 30, 2014), ECF No. 402. The
2
Hardison’s statutory maximum revocation sentence was sixty
months because his conspiracy conviction was a class A felony.
See 18 U.S.C. §§ 3583(e)(3), 3559(a)(1).
7
court explained therein that Hardison was charged with violating
the terms of his supervised release by engaging in the “same or
similar” conduct that had formed the basis of his underlying
convictions. Id. at 2. The court further noted that neither
the 204-month sentence nor the court’s prior leniency had been
sufficient to deter Hardison from engaging in the sale of
illegal narcotics, and that the maximum sentence was needed to
protect the public from Hardison. Id. Finally, the court
considered and rejected Hardison’s various arguments in
mitigation. Id.It is uncontested that the policy statements in Chapter
Seven of the Sentencing Guidelines called for Hardison to
receive a revocation sentence of thirty-seven to forty-six
months in prison. 3 The district court, however, made no explicit
reference to that sentencing range during the revocation hearing
or in its subsequent order. Additionally, neither Hardison nor
the government argued for a specific revocation sentence or
referenced the policy statement range. Hardison failed to
object to the revocation sentence imposed by the court.
3
Hardison’s policy statement range called for thirty-seven
to forty-six months in prison because he committed a Grade A
violation of his release and had a criminal history category of
IV. See USSG § 7B1.1(a)(1) (2012).
8
Hardison has timely appealed, contending that the
revocation sentence is plainly unreasonable. We possess
jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291.
II.
We are not to vacate a revocation sentence “if it is within
the statutory maximum and is not ‘plainly unreasonable.’”
United States v. Webb, 738 F.3d 638, 640 (4th Cir.
2013) (quoting United States v. Crudup, 461 F.3d 433, 438 (4th
Cir. 2006)). The proper inquiry first assesses whether the
sentence was either procedurally or substantively unreasonable.
See Crudup, 461 F.3d at 438-39. If the sentence is unreasonable
on either ground, we must also identify whether it was “plainly”
so. Id. at 439.
Where a defendant fails to preserve a claim of error in the
sentencing court, we review the issue for plain error only. See
Webb, 738 F.3d at 640-41. To satisfy plain error review, the
appellant bears the burden of establishing that (1) the district
court erred; (2) the error was “plain”; and (3) the error
“affect[ed his] substantial rights.” United States v. Olano,
507 U.S. 725, 732 (1993). If the three-part plain error test is
satisfied, we must decide whether to cure the error, “and should
not do so unless the error ‘seriously affects the fairness,
9
integrity or public reputation of judicial proceedings.’”
United States v. Hargrove, 625 F.3d 170, 184 (4th Cir.
2010) (quoting Olano, 507 U.S. at 736).
III.
On appeal, Hardison challenges the procedural
reasonableness of his revocation sentence on the ground that the
district court failed to consider his policy statement range of
thirty-seven to forty-six months prior to imposing a maximum
revocation sentence of sixty months. Hardison also maintains
that the revocation sentence was substantively unreasonable, in
that the court failed to adequately justify its decision to
deviate from the policy statement range.
A.
In deciding whether to revoke a term of supervised release,
a district court is guided by policy statements contained in
Chapter Seven of the Guidelines, as well as the statutory
factors applicable to revocation sentences under 18
U.S.C. §§ 3553(a) and 3583(e). Chapter Seven instructs that a
court should fashion a revocation sentence to “sanction
primarily the breach of [the court’s] trust.” USSG ch. 7, pt.
A(3) (2012). Chapter Seven also provides for a policy statement
range that is calculated on the basis of the severity of the
underlying violation as well as the defendant’s criminal
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history. See id. § 7B1.4. Section 3583(e) of Title 18, which
governs supervised release, further directs a court to consider
factors enumerated in § 3553(a) prior to imposing a revocation
sentence, including the sentencing range established by the
applicable policy statements, the need to deter future criminal
conduct, and the need to protect the public from further
criminal activity. See 18 U.S.C. § 3553(a)(2)(B)-(C), (a)(4).
Hardison challenges the procedural reasonableness of his
revocation sentence on the ground that the district court failed
to consider his policy statement range. Applying a plain error
standard of review, we first assess whether an error occurred ——
that is, was Hardison’s sentence procedurally unreasonable. The
Supreme Court has recognized that a court imposes a procedurally
unreasonable sentence if it commits a “significant procedural
error” in the course of sentencing, including “failing to
calculate . . . the Guidelines range.” Gall v. United States,
552 U.S. 38, 51 (2007). We have applied that principle to
supervised release violations, ruling that a court “must
consider . . . the policy statement range” when imposing a
revocation sentence. See United States v. Moulden, 487 F.3d
652, 656 (4th Cir. 2007); see also Gall, 552 U.S. at 49 (“[A]
district court should begin all sentencing proceedings by
correctly calculating the applicable Guidelines
range.” (emphasis added)).
11
Notably, the record gives no indication that the district
court considered Hardison’s policy statement range of thirty-
seven to forty-six months. The court failed to reference that
range at the revocation hearing or in its written revocation
order, and neither Hardison’s probation officer nor his counsel
alerted the court to the policy statement range. Cf. United
States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) (determining
that revocation sentence was not procedurally unreasonable when,
although not mentioning policy statement range, court referenced
range specified in probation officer’s worksheet and counsel’s
argument, thus showing that range was in court’s contemplation).
In this situation, we cannot say that the range was within the
court’s contemplation at sentencing. Accordingly, we conclude
that the court committed a procedural error, thereby rendering
its sentence procedurally unreasonable. The first prong of
plain error review is thus satisfied.
Next, we must decide whether the error was plain, which in
this case requires an assessment of whether Hardison’s
procedurally unreasonable sentence was also plainly
unreasonable. See United States v. Crudup, 461 F.3d 433, 439
(4th Cir. 2006). In conducting that inquiry, we apply the
definition of “plain” from our plain error principles. Id.Thus, a sentence can only be plainly unreasonable if the
sentencing error is “clear” or “obvious,” id., in that the
12
sentence “run[s] afoul of clearly settled law,” United States v.
Thompson, 595 F.3d 544, 548 (4th Cir. 2010). We have authority
for the proposition that a revocation sentence imposed absent
consideration of the applicable policy statement range is
procedurally unreasonable. See, e.g., Moulden, 478 F.3d at 656;
Crudup, 461 F.3d at 440 (deeming revocation sentence
procedurally reasonable because court expressly considered
advisory range). By failing to consider the policy statement
range prior to sentencing, the district court imposed a plainly
unreasonable sentence. Thus, Hardison has also satisfied the
second prong of plain error review.
The determination that the district court imposed a plainly
unreasonable sentence does not end our inquiry. We next assess
whether the court’s plain error affected Hardison’s substantial
rights. See United States v. Olano, 507 U.S. 725, 732 (1993).
To satisfy Olano’s third prong in the context of a revocation
sentencing, Hardison “must show that he would have received a
lower sentence had the error not occurred.” See United States
v. Knight, 606 F.3d 171, 178 (4th Cir. 2010); see also United
States v. McLaurin, 764 F.3d 372, 388 (4th Cir.
2014) (explaining that there must be nonspeculative basis in
record to conclude lower sentence would have been imposed).
This is the prong where Hardison fails, in that he has not shown
a nonspeculative basis upon which to vacate his sentence.
13
Indeed, the court was unequivocal in its determination that
Hardison had “no sympathy or position to argue” as a result of
his earlier breach of the court’s trust, and that Hardison had
made an “absolute mockery” of the supervised release system.
See J.A. 23; cf. McLaurin, 764 F.3d at 388 (vacating sentence
where district court expressed serious concern with advisory
Guidelines range). The court specifically concluded that
Hardison should receive the “maximum punishment,” see J.A. 23,
referring to the statutory maximum sentence of sixty months. It
would thus be “pure speculation” for us to decide that the
sentencing court would have imposed a lower sentence if it had
considered Hardison’s policy statement range. See Knight, 606
F.3d at 179. In these circumstances, Hardison’s substantial
rights have not been affected, and his procedural
unreasonableness contention does not satisfy plain error review.
B.
Hardison also contends that his revocation sentence was
substantively unreasonable because the district court failed to
adequately explain why his sentence was substantially in excess
of the policy statement range. In the context of a revocation
sentencing, the district court’s explanation of its sentence
“need not be as specific” as that required for a sentence which
departs or varies from a traditional Guidelines range. See
Moulden, 478 F.3d at 657 (internal quotation marks omitted). We
14
will therefore uphold a revocation sentence as substantively
reasonable if the court has “sufficiently stated a proper basis
for its conclusion.” See Crudup, 461 F.3d at 440. In Crudup,
we affirmed the imposition of the statutory maximum sentence as
substantively reasonable, notwithstanding the fact that it
exceeded the applicable policy statement range. See id. In so
ruling, we observed that the court based its sentence on several
relevant factors, including that the defendant had committed
numerous violations of his supervised release, despite having
previously received leniency from the court. See id.Similarly, in Hardison’s revocation hearing, the court
emphasized that, after receiving leniency from the court,
Hardison abused the court’s trust in an egregious fashion. The
court also observed and emphasized that Hardison had committed
multiple violations of his conditions of supervised release,
including selling cocaine and unlawfully possessing a firearm.
By its revocation order, the district court relied on
several pertinent § 3553(a) factors for imposing the maximum
sentence. Emphasizing the § 3553(a)(2)(B) factor of deterrence,
the court observed that a lengthy sentence was required because
“neither [Hardison’s] prior conviction and sentence of 204
months’ imprisonment nor this Court’s leniency in permitting him
to continue on supervision . . . were sufficient to cause him to
refrain from engaging in the sale of illegal narcotics.” United
15
States v. Hardison, No. 5:95-cr-00083, at 2 (E.D.N.C. May 30,
2014), ECF No. 402. The court also explained, invoking
§ 3553(a)(2)(C), that the maximum sentence was required to
protect the public from further crimes by Hardison. Id.
Finally, the court balanced the statutory considerations against
Hardison’s arguments in mitigation, stating:
The Court has further considered the arguments by
defendant’s counsel presented in mitigation, and finds
they do not outweigh the need for adequate deterrence
and protection of the public. Indeed, counsel’s
argument that defendant has been on supervision for
four years with only one earlier violation is strongly
undercut by the testimony of the investigating officer
that this defendant was a known drug dealer in a high
crime area.
Id. In sum, the court had multiple reasons for its imposition
of the statutory maximum sentence, and explicitly considered and
rejected all arguments in mitigation. The court’s explanation
was more than sufficient and therefore substantively reasonable.
Accordingly, Hardison’s substantive unreasonableness contention
fails on the first prong of plain error review, in that the
revocation sentence was not substantively unreasonable and thus
not in error.
IV.
Pursuant to the foregoing, we affirm the revocation
sentence of the district court.
AFFIRMED
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