United States v. Richard Conner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7589
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD LEE CONNER,
Defendant - Appellant.
No. 11-7601
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY THOMAS FOYE,
Defendant - Appellant.
Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston. Irene C. Berger,
District Judge. (2:06-cr-00206-1; 2:99-cr-00023-1)
Submitted: June 5, 2012 Decided: October 18, 2012
Before DUNCAN, DAVIS, and WYNN, Circuit Judges.
Vacated and remanded with directions by unpublished per curiam
opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellants.
R. Booth Goodwin II, United States Attorney, John J. Frail,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
In these consolidated appeals, Richard Lee Conner and
Anthony Thomas Foye appeal the district court’s respective
orders reducing their sentences pursuant to 18 U.S.C.
§ 3582(c)(2) (2006) and modifying the terms of their supervised
release by requiring that they reside in a community confinement
center for ninety days. We vacate the district court’s
judgments and remand with directions to strike the added
conditions of supervised release.
In 2007, Conner pled guilty to distribution of cocaine
and cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006),
and was sentenced to eighty-four months’ imprisonment. The
district court granted Conner’s subsequent motion for reduction
in sentence pursuant to § 3582(c)(2) in light of Amendment 706,
reducing his sentence to sixty-three months in prison. In 2011,
Conner filed a second motion for reduction in sentence, seeking
the benefit of Amendment 750, which became retroactively
applicable on November 1, 2011. The district court granted
Conner’s motion and reduced his sentence to fifty-one months’
imprisonment. In addition, because the court anticipated that
Conner’s release from the Bureau of Prisons was imminent, and
that Conner would benefit from a period of adjustment upon his
return to the community, it ordered Conner to “complete a period
of ninety days in a halfway house . . . as a modification of his
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conditions of supervised release.” Such a condition had not
been ordered at the time of sentencing.
In 1999, Foye pled guilty to distribution of cocaine
base and possession of cocaine base with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1) (2006), and was sentenced
to 235 months in prison. Thereafter, the district court granted
Foye’s motion for reduction of sentence pursuant to § 3582(c)(2)
in light of Amendment 706, reducing Foye’s sentence to 188
months’ imprisonment. In 2011, Foye moved once again for a
reduction in sentence following Amendment 750. The district
court granted Foye’s motion and reduced his sentence to 151
months in prison. As it had ordered in Conner’s case, the court
also imposed a 90-day stay in a Community Correctional Center
upon Foye’s release “as a modification of his conditions of
supervised release.”
Conner and Foye subsequently appealed, arguing that
the district court erred by modifying the terms of their
supervised release without conducting a hearing, as required by
Fed. R. Crim. P. 32. We review a district court’s decision
regarding whether to reduce a sentence under § 3582(c)(2) for
abuse of discretion. United States v. Munn, 595 F.3d 183, 186
(4th Cir. 2010) (citation omitted). A district court abuses its
discretion if it relies on an erroneous factual or legal
premise. DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir.
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2008) (internal quotation marks omitted). Pursuant to
§ 3582(c)(2), a district court may modify the term of
imprisonment “of a defendant who has been sentenced . . . based
on a sentencing range that has subsequently been lowered by the
Sentencing Commission,” if the Guidelines amendment is
retroactively applicable. 18 U.S.C. § 3582(c)(2).
As Amendment 750 reduced the advisory Guidelines range
for both Conner and Foye, the district court did not abuse its
discretion in reducing their respective sentences. However, the
district court exceeded its authority by modifying the terms of
the Defendants’ supervised release without first conducting a
hearing or obtaining waiver of such hearing. Pursuant to Fed.
R. Crim. P. 32.1(c)(1), “[b]efore modifying the conditions of
probation or supervised release, the court must hold a hearing,
at which the person has the right to counsel and an opportunity
to make a statement and present any information in mitigation.”
A hearing is not required if the defendant waives the hearing or
the relief sought is favorable to the defendant and the
Government has received notice of the relief sought, has had a
reasonable opportunity to object, and has not done so. Fed. R.
Crim. P. 32.1(c)(2). Neither Conner nor Foye waived the right
to a hearing, and the Government concedes that the district
court erred when it modified their supervised release conditions
as described above.
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We previously stayed the district court’s orders
during the pendency of these appeals. It is apparent to us that
Conner and Foye have long since returned to the community from
the Bureau of Prisons and that the aim of the district court’s
modified conditions of release cannot be attained. Accordingly
we vacate the district court’s judgments and remand with
directions to strike the added conditions of supervised release.
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.
VACATED AND REMANDED WITH DIRECTIONS
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