United States v. Steven Bell

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4052
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
STEVEN WAYNE BELL,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:01-cr-00013-BR-1)
Submitted: July 11, 2013 Decided: July 24, 2013
Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Steven Wayne Bell appeals the district court’s
judgment revoking his supervised release and sentencing him to
fourteen months’ imprisonment. 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 but
questioning whether the district court committed procedural
sentencing error by considering an impermissible factor when
fashioning Bell’s sentence. Bell has filed pro se supplemental
briefs echoing counsel’s claim and raising additional issues.
The Government has declined to file a response brief. After a
careful review of the record, we affirm.
We will affirm a revocation sentence that falls within
the prescribed statutory range and is not “plainly
unreasonable.” United States v. Crudup, 461 F.3d 433, 437 (4th
Cir. 2006). In making this determination, we first consider
whether the sentence is unreasonable, using the same general
analysis employed in review of original sentences. See id. at
438. “This initial inquiry takes a more deferential appellate
posture concerning issues of fact and the exercise of discretion
than reasonableness review for [G]uidelines sentences.” United
States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal
quotation marks and citations omitted). Only if the sentence is
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procedurally or substantively unreasonable will we consider
whether it is “plainly” so. Id. at 657.
While the sentencing court “ultimately has broad
discretion to revoke its previous sentence and impose a term of
imprisonment up to the statutory maximum,” Crudup, 461 F.3d at
439 (internal quotation marks omitted), the court is required to
consider the Guidelines’ Chapter Seven policy statements and the
factors applicable to revocation sentences under 18 U.S.C.
§§ 3553(a), 3583(e) (2006). Chapter Seven provides that a
revocation sentence should “sanction primarily the defendant’s
breach of trust.” U.S. Sentencing Guidelines Manual Ch. 7, Pt.
A(3)(b) (2012).
Both Bell and his counsel question whether Bell’s
sentence is plainly unreasonable because the district court
improperly relied upon the need to promote respect for the law
in sentencing Bell. Because Bell did not raise this issue in
the district court, this claim is subject to review for plain
error. See United States v. Bennett, 698 F.3d 194, 199-200 (4th
Cir. 2012), cert. denied, 133 S. Ct. 1506 (2013). To meet this
standard, Bell must demonstrate that an error occurred, the
error was plain, and the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732 (1993). Even if these
requirements are met, we will decline to correct the error
unless it “seriously affects the fairness, integrity or public
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reputation of judicial proceedings.” Id. (internal quotation
marks and alteration omitted).
While § 3583(e) requires a district court to consider
most § 3553(a) factors in imposing a revocation sentence, it
specifically omits the factors listed in § 3553(a)(2)(A),
including the need to promote respect for the law.
Accordingly, a district court is not permitted to impose a
revocation sentence based primarily on these considerations.
See Crudup, 461 F.3d at 439. Although the district court made a
single reference to the need to promote respect for the law, we
conclude that this brief statement does not render Bell’s
sentence unreasonable. Rather, viewing the revocation hearing
as a whole, we conclude the court designed the sentence
primarily to sanction Bell’s breach of the trust the court
placed in him at an earlier revocation hearing when it provided
him an additional chance to comply with his mandated treatment
program. The court also properly considered the need to deter
further misconduct in imposing Bell’s sentence. We therefore
find no violation of § 3583(e).
In his pro se supplemental brief, Bell asserts that he
was not provided adequate notice of the revocation hearing to
permit him to prepare and to obtain necessary witnesses.
Because he did not raise an objection on this basis in the
district court, we review the issue for plain error. See Olano,
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507 U.S. at 732. Due process requires that a defendant charged
with a supervised release violation be afforded adequate notice
of the charges to permit him to prepare a defense. United
States v. Chatelain, 360 F.3d 114, 121 (2d Cir. 2004); see Fed.
R. Crim. P. 32.1(b)(2); Morrissey v. Brewer, 408 U.S. 471, 489
(1972) (minimum due process requirements for parole revocation);
United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992)
(recognizing that due process requirements apply to revocations
of supervised release). However, our review of the record does
not support Bell’s timeline of events or suggest that Bell was
deprived of adequate opportunity to present his defense. Cf.
United States v. Cotroneo, 89 F.3d 510, 513-14 & n.7 (8th Cir.
1996) (concluding that district court did not violate due
process by failing to comply with Rule 32.1, nor did it abuse
its discretion in denying continuance, when defendant received
detailed revocation petition eight days before hearing and
Government’s evidence one day before hearing). Moreover, even
had an error occurred, we conclude, based on Bell’s description
of the allegedly omitted testimony, that this testimony would
not have impacted his revocation proceedings and, thus, its
omission did not violate his substantial rights.
We have reviewed the remaining issues raised in Bell’s
pro se supplemental briefs and find them without merit. Insofar
as Bell attempts to challenge counsel’s ineffectiveness in
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advising him to admit that he violated the conditions of his
supervised release, his claim is not cognizable on direct
appeal, as no ineffectiveness appears conclusively on the
record. See United States v. Benton, 523 F.3d 424, 435 (4th
Cir. 2008). Nor does the record contain evidence sufficient to
undermine the validity of his admission to the use of a
controlled substance or the court’s findings that he violated
his supervised release terms. See United States v. Copley, 978
F.2d 829, 831 (4th Cir. 1992) (indicating that the district
court need only find a supervised release violation by a
preponderance of the evidence).
While Bell asserts that his supervision should not
have been revoked based on the violations he committed,
revocation was mandatory due to the district court’s finding
that he used an illicit substance. See 18 U.S.C. § 3583(g)(1)
(2006) (mandating revocation when district court finds defendant
has possessed controlled substance); United States v. Clark, 30
F.3d 23, 26 (4th Cir. 1994) (concluding that, where the district
court finds intentional or culpable use of controlled substance,
finding of possession necessarily follows, requiring application
of § 3583(g)). Absent evidence to the contrary, the court is
presumed to have considered and rejected the exception to this
rule. See United States v. Hammonds, 370 F.3d 1032, 1038-39
(10th Cir. 2004); United States v. Crace, 207 F.3d 833, 835-36
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(6th Cir. 2000). Moreover, the court acted well within its
discretion in revoking Bell’s supervision based on his repeated
failure to comply with the treatment programs mandated by his
probation officer and the terms of his supervised release.
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 Bell, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Bell 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 Bell.
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
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