United States v. Steve Wells, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4682
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEVE CHRISTOPHER WELLS, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:10-cr-00026-SGW-1)
Submitted: June 19, 2014 Decided: July 11, 2014
Before KING, GREGORY, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Charlene
R. Day, Assistant United States Attorney, Elizabeth Noles, Third
Year Law Student, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In July 2010, Steve Christopher Wells, Jr., entered a
guilty plea to possession with intent to distribute five grams
or more of crack cocaine, in violation of 21 U.S.C.
§ 841(b)(1)(B) (2006). Without a recidivist enhancement, Wells
faced a mandatory minimum sentence of five years’ imprisonment.
Prior to Wells’ December 2010 sentencing, the Government moved
to amend the charge to allow Wells to plead guilty to the
lesser-included offense of violating 21 U.S.C. § 841(b)(1)(C)
(2006). The Government made this motion to bring Wells’ case in
line with the Fair Sentencing Act of 2010 (“FSA”), which took
effect on August 3, 2010. Wells agreed to the modification,
without reservation. The district court allowed the amendment
and sentenced Wells to twenty-four months’ imprisonment, to be
followed by four years of supervised release.
After he was released from prison and while serving
his supervised release, Wells was arrested by Virginia law
enforcement authorities and charged with felony eluding.
Thereafter, Wells’ federal probation officer filed a violation
report. The district court subsequently determined that Wells
violated the terms of his supervised release and sentenced Wells
to twenty-four months’ imprisonment, to be followed by an
additional ten years of supervised release.
2
On appeal, Wells challenges only the subsequent
supervised release term that the court ordered. Specifically,
Wells contends that imposition of the additional ten-year term
of supervised release violates the Ex Post Facto Clause because
it is longer than the supervised release term he faced at the
time he committed the underlying violation of § 841(b)(1)(B). 1
We reject this argument and affirm.
Wells did not assert this constitutional argument
before the district court; as such, we are limited to plain
error review. See United States v. Olano, 507 U.S. 725, 732–33
(1993); United States v. Knight, 606 F.3d 171, 177 (4th Cir.
2010) (reviewing for plain error defendant’s ex post facto
challenge to the particular edition of the Sentencing
Guidelines, which was not presented in the district court);
1
Taken together, the relevant statutory provisions
authorize a four- to five-year term of supervised release for a
violation of § 841(b)(1)(B). See 21 U.S.C. § 841(b)(1)(B)
(setting statutory maximum sentence at forty years’ imprisonment
and mandating the imposition of at least a four-year term of
supervised release); see also 18 U.S.C. § 3559(a)(2) (2012)
(designating any federal offense with a statutory maximum
sentence of twenty-five years to life as a Class B felony); 18
U.S.C. § 3583(b)(1) (2012) (authorizing a five-year maximum term
of supervised release for Class A or Class B felonies).
Comparatively, while there is a statutory minimum three-year
term of supervised release that must be imposed in conjunction
with a conviction under § 841(b)(1)(C), there is no upper limit
as to the term of supervised release that may be ordered. See
21 U.S.C. § 841(b)(1)(C); United States v. Pratt, 239 F.3d 640,
647-48 (4th Cir. 2001).
3
accord United States v. Woodward, 744 F.3d 488, 496 (7th Cir.
2014) (reviewing unpreserved ex post facto claim for plain
error).
The Ex Post Facto Clause “bars application of a law
that changes the punishment, and inflicts a greater punishment,
than the law annexed to the crime, when committed.” Johnson v.
United States, 529 U.S. 694, 699 (2000) (internal quotation
marks and alteration omitted). For a law to run afoul of the Ex
Post Facto Clause, two elements must be present — it must
“operate[ ] retroactively,” applying to conduct completed prior
to its enactment, and it must “raise[ ] the penalty from
whatever the law provided when [the defendant] acted.” Id.Wells’ claim fails because no “new law” operated
retroactively at the revocation proceeding. Operative, instead,
was the same statutory provision to which Wells consented when
he accepted the Government’s offer to modify his initial charge
of conviction. He agreed to this modification knowingly and
without reservation. As such, the district court properly
applied the supervised release provisions relevant to
§ 841(b)(1)(C), as this was the basis for Wells’ initial
conviction and sentence. 2
2
This is line with the general legal principle “that post-
revocation prison sentences are sentences for the original
federal crime, not punishment for the violation of the terms of
(Continued)
4
We thus agree with the Government’s threshold argument
that the Ex Post Facto Clause simply is not implicated here.
The deviation between the statutory provision Wells violated
when he committed the underlying federal offense in December
2009, and the statutory provision utilized to later determine
his supervised release range, resulted from Wells’ acceptance of
the Government’s offer to reduce his charge, “not by any
operation of law.” (Appellee’s Br. at 13).
Accordingly, we affirm the district court’s revocation
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
supervised release.” United States v. Fareed, 296 F.3d 243, 247
(4th Cir. 2002) (citing Johnson, 529 U.S. at 700-01).
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