US v. Brian Soles

Filing 920090702

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-5091

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. BRIAN DEAN SOLES, Defendant ­ Appellant.

Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:00-cr-00285-NCT-2)

Submitted:

June 4, 2009

Decided:

July 2, 2009

Before MICHAEL, KING, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville, North Carolina, for Appellant. Lisa Blue Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Brian agreement to Dean one Soles of pled bank guilty pursuant in to a plea of

count

robbery,

violation

18 U.S.C. §§ 2, 2113(a) (1994 & Supp. IV 1999) and was sentenced in February 2001 to 32 months' imprisonment followed by three years of supervised release. Soles began serving his term of On December 19, 2005,

supervised release on December 20, 2002.

the date on which Soles' term of supervised release was set to expire, a petition was filed in the district court alleging a violation of supervised release. Soles had been arrested and

taken into custody on state charges in North Carolina, and a federal detainer was lodged with state authorities. Soles,

however, was not arrested by the United States Marshal's Service until August 20, 2007. the district him court to After a hearing on September 20, 2007, revoked Soles' supervised and release and

sentenced

twelve

months'

imprisonment

twenty-four

months' supervised release. 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. Counsel questions,

however, whether Soles was entitled to a hearing under Fed. R. Crim. P. 32.1 promptly after his arrest in North Carolina and whether the twenty-one-month period of time between Soles'

December 2005 arrest and the September 2007 revocation hearing 2

violated Soles' constitutional and statutory rights to a speedy trial. Counsel also questions whether the district court should

have awarded Soles sentencing credit for 506 days he spent in state custody and questions whether Soles' sentence upon

revocation is plainly unreasonable.

We affirm.

We review for plain error counsel's Fed. R. Crim. P. 32.1 claim and the claims of constitutional and statutory speedy trial violations because Soles did not raise these issues in the district court. See Fed. R. Crim. P. 52(b); United States v. We discern no plain error.

Olano, 507 U.S. 725, 731-32 (1993).

Fed. R. Crim. P. 32.1 applies only to those in custody solely for the violation v. Pardue, of their F.3d supervised 695, release. (8th See Cir. United 2004).

States

363

697-98

Further, the Rule is only triggered when the defendant is taken into federal custody for the violation of his supervised Soles of his

release. was not

See Fed. R. Crim. P. 32.1(a)(1) & (b)(1)(A). taken into federal custody for a violation

supervised release until August 20, 2007, and we conclude that the month-long period was between Soles' federal See arrest R. and Crim. the P.

revocation 32.1(b)(2).

hearing

reasonable.

Fed.

Additionally, Soles had no Sixth Amendment right to a speedy trial because supervised release revocation proceedings are not stages of a criminal prosecution. 3 See United States v.

Santana, 526 F.3d 1257, 1262 (9th Cir. 2008); United States v. House, 501 F.3d 928, 930-31 (8th Cir. 2007); United States v. Tippens, States v. `full 39 F.3d 88, 442 89 (5th Cir. 807 a 1994); (2d see also 2006) a United ("[T]he criminal

Carlton, of

F.3d

802, due

Cir.

panoply

rights'

defendant

in

prosecution does not apply to revocation hearings for parole, for probation, or for supervised release." (citations omitted)); United States v. Work, 409 F.3d 484, 491-92 (1st Cir. 2005) (Sixth Amendment's right to jury trial does not extend to

supervised release revocation proceedings). Counsel's claim of Speedy Trial Act error is likewise without merit. The Speedy Trial Act provides, in relevant part,

that any "information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges." § 3161(b) (2006 & Supp. II 2008). Speedy Trial Act is to mandate 18 U.S.C.

However, the "goal of the an orderly and expeditious

procedure for federal criminal prosecutions by fixing specific, mechanical time limits within which the various progressions in the prosecution must occur." United States v. Taylor, 240 F.3d

425, 427 (4th Cir. 2001) (internal quotation marks and citation omitted) (emphasis added). As supervised release revocation

4

proceedings

are

not

stages

in

the

criminal

prosecution,

the

Speedy Trial Act has no applicability to them. Counsel should have also questions whether the district for 506 court he

awarded

Soles

sentencing

credit

days

spent in state custody.

Under 18 U.S.C. § 3585(b) (2006), a

"defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences." Section 3585(b),

however, does not permit a district court to determine credit at sentencing. Rather, Prisons, only may United States v. Wilson, 503 U.S. 329, 334 (1992). the Attorney General, through the Id. Bureau at of

compute

sentencing

credit.

334-35.

Therefore, as counsel correctly concedes, the district court was without authority to order the Bureau of Prisons to give Soles credit for time he served in North Carolina. revocation hearing, the government's attorney Moreover, at the indicated that

Soles may have received credit against his state sentence for the time he spent in state custody. If so, Soles was not

entitled to have credit already applied to his state sentence counted a second time and applied to his federal sentence for violating the terms of his supervised release. See McClain v.

Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993). Counsel questions whether Soles' sentence upon

revocation is plainly unreasonable. 5

We will affirm a sentence

imposed after revocation of supervised release if it is within the applicable statutory maximum and is not plainly

unreasonable. 439-40 (4th

See United States v. Crudup, 461 F.3d 433, 437, Cir. 2006). We first assess the sentence for and of

unreasonableness, substantive

"follow[ing] that

generally we employ

the in

procedural our review

considerations

original sentences, . . . with some necessary modifications to take into account the unique nature of supervised release

revocation sentences."

Id. at 438-39.

If we conclude that a Id. or

sentence is not unreasonable, we will affirm the sentence. at 439. Only if a sentence is found procedurally

substantively unreasonable will we "decide whether the sentence is plainly unreasonable." A procedurally supervised reasonable if Id. release the revocation court sentence considered is the

district

Chapter Seven advisory policy statement range and the 18 U.S.C. § 3553(a) factors that it is permitted to consider in a

supervised release revocation case. Crudup, 461 F.3d if the at 440. Such court a

See 18 U.S.C. § 3583(e); sentence a is substantively basis for

reasonable

district

stated

proper

concluding the defendant should receive the sentence imposed, up to the statutory maximum. is plainly unreasonable Id. at 439. 6 Crudup, 461 F.3d at 440. if it is clearly or A sentence obviously

unreasonable.

Soles' 12-month prison sentence and 24-month period of supervised release do not exceed the applicable maximums set by statute, and the district court properly calculated the advisory policy statement range and sentenced Soles within that range. Because the district court did not explain why it imposed a twelve-month prison sentence, the sentence is at least arguably unreasonable. However, we easily conclude that Soles' sentence

is not "plainly" unreasonable because the sentence was within the recommended policy statement range and the record does not contain any basis upon which to conclude that the imposed

sentence is clearly or obviously unreasonable. Finally, we cannot review counsel's claim that the

district court erred by imposing the 36-month term of supervised release in Soles' original sentencing, as we lack jurisdiction to examine the original sentencing proceeding in which the 36month term was imposed. 115, 117-18 (4th he Cir. should See United States v. Johnson, 138 F.3d 1998). have If raised Soles this found claim the on term direct

objectionable, appeal.

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 Soles, in writing, of the right to petition the Supreme Court of 7 the United States for further

review.

If Soles 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 We dispense with oral argument because the are and adequately argument presented not in aid the the

was served on Soles. facts and legal before

contentions the court

materials

would

decisional process. AFFIRMED

8