US v. Emmanuel Washington

Filing 920090702

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-4839

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. EMMANUEL WASHINGTON, Defendant ­ Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Charlottesville. Norman K. Moon, District Judge. (3:00-cr-00063-nkm-14)

Submitted:

June 10, 2009

Decided:

July 2, 2009

Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David L. Heilberg, DYGERT, WRIGHT, HOBBS & HEILBERG, PLC, Charlottesville, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Ronald M. Huber, Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Emmanuel Washington appeals the district court's

judgment imposing a 27-month prison sentence upon the revocation of his supervised release. Although Washington does not contest

the revocation on appeal, he maintains that the district court's sentence is not reasonable as it was premised upon an improper calculation of the Chapter Seven policy statement range, see U.S. Sentencing Guidelines Manual ("USSG") (2007), because the state crimes for which he was convicted do not fit the criteria for a Grade A violation. He also contends that the district

court impermissibly considered testimonial hearsay, in violation of the Sixth Amendment's Confrontation Clause, and erred in

considering conduct for which he was acquitted in state court. Finally, he argues that the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and to provide a

sufficient explanation for the 27-month sentence. We supervised review release a to sentence imposed after it

We affirm. revocation is of

determine

whether

plainly

unreasonable.

United States v. Crudup, 461 F.3d 433, 437-40 The first step in this analysis is whether the Id. at 438. generally in In conducting this the procedural and

(4th Cir. 2006).

sentence was unreasonable. review, this court follows

substantive sentences.

considerations Id.

employed

reviewing

original

The district court commits procedural error by 2

improperly calculating the Guidelines.

Gall v. United States, In assessing whether

552 U.S. 38, 128 S. Ct. 586, 597 (2007).

the district court properly applied the Guidelines, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Osborne, 514 F.3d For

377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). mixed questions of law and fact, we apply Id. a due

deference

standard in reviewing the district court.

Although the district court must consider the policy statements in Chapter Seven of the Sentencing Guidelines and the statutory factors in § 3553(a) and 18 U.S.C. § 3583, "the 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 (quoting United States v. Lewis, 424 F.3d 239, 244 (2d Cir. on 2005)) we (internal will quotation a marks

omitted).

Finally,

review,

assume

deferential

appellate posture concerning issues of fact and the exercise of discretion. Id. Washington did not object to the district

Because

court's finding that he committed a Grade A violation of the terms of his supervised release, we review this claim for plain error. United States v. Olano, 507 U.S. 725, 732 (1993). Under

the plain error standard, Washington must show: (1) there was error; (2) the error was plain; and (3) the error affected his 3

substantial

rights.

Id.

Even

when

these

conditions

are

satisfied, this court may exercise its discretion to notice the error only if the error "seriously" affects the "fairness, Id.

integrity, or public reputation of judicial proceedings." at 736 (internal quotation marks omitted). Under USSG § 7B1.1(a)(1), p.s., a state

offense

punishable by a term of imprisonment exceeding one year that is a "crime of violence" constitutes a Grade A violation of a

defendant's supervised release. includes any offense punishable

The term "crime of violence" by a term of imprisonment

exceeding one year that "has as an element the use, attempted use, or threatened use of physical force against the person of another" or "involves use of explosives [] or otherwise involves conduct that presents a serious potential risk of physical

injury to another." p.s., comment. (n.2).

USSG § 4B1.2(a)(1) & (2); see USSG § 7B1.1,

The commentary to USSG § 7B1.1, p.s. emphasizes that the "grade of violation does not depend on the conduct that is the subject in of a criminal criminal charges of which the defendant the grade is of

convicted

proceeding.

Rather,

violation is to be based on the defendant's actual conduct." USSG § 7B1.1, p.s., comment. (n.1). was charged under Virginia law In this case, Washington among other offenses,

with,

abduction and malicious wounding, both felonies punishable by a 4

year or more in prison. 51 (West 2007).

See Va. Code Ann. §§ 18.2-47(A), 18.2-

These crimes meet the requirements of USSG

§ 7B1.1(a)(1)(A), p.s. in that they are state crimes of violence punishable by more than one year's imprisonment. Ann. § 18.2-10 (West 2007). Thus, they See Va. Code Grade A

constitute

violations. Washington argues that because he was ultimately

convicted of two state misdemeanors, he cannot be deemed to have committed a Grade A violation of his supervised release. is simply incorrect. This

A violation of the terms of supervised

release is determined on the basis of a defendant's conduct and may be found whether Washington was ever convicted of any

particular offense. 1110, 1114 (9th Cir.

See United States v. Jolibois, 294 F.3d 2002). a Further, although a a conviction of

requires

proof

beyond

reasonable

doubt,

violation

supervised release need only be proved by a preponderance of the evidence, see 18 U.S.C. § 3583(e)(3). As to the evidence the district court considered in finding a Grade A violation, Washington lodges two challenges. First, Washington asserts that his Sixth Amendment right to

confrontation, as elucidated in Crawford v. Washington, 541 U.S. 36, 68 (2004), was violated hearsay because in the the district court

considered violation

testimonial report.

Probation

Officer's fails,

Washington's 5

Sixth

Amendment

claim

however, revocation

as

Crawford proceedings

does

not

apply they

to

supervised are not

release "criminal

because

prosecutions" under the Sixth Amendment.

See United States v.

Kelley, 446 F.3d 688, 691-92 (7th Cir. 2006); United States v. Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005); United States v. Hall, 419 F.3d 980, 985-86 (9th Cir. 2005); United States v. Kirby, 418 F.3d 621, 627 (6th Cir. 2005); United States v.

Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004). Relying on United States v. Booker, 543 U.S. 220

(2005), Washington also asserts that the district court erred in considering conduct for which he was acquitted in state court. He reasons that his sentence violates the Sixth Amendment

because the district court, in reaching its conclusion that he committed a Grade A violation, engaged in impermissible judicial fact-finding. sentencing This argument is also without merit, however, as may properly consider acquitted conduct in

courts

fashioning a sentencing range, as long as the conduct is proven by a preponderance of the evidence. See United States v. Watts,

519 U.S. 148, 155-56 (1997) (holding that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence"). remains valid, even after Booker. F.3d 654, 657-58 (9th Cir. This rule

United States v. Mercado, 474 (collecting cases), cert.

2007) 6

denied, 128 S. Ct. 1736 (2008); see United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008) (rejecting claim that sentence violates Sixth Amendment if it depended on judge-found facts to survive reasonableness review as "too creative for the law as it stands"), cert. denied, 129 S. Ct. 950 (2009); United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007) ("When applying the Guidelines in an advisory manner, the district court can make factual findings using the preponderance of the evidence

standard."), cert. denied, 128 S. Ct. 1121 (2008). Washington's Sixth Amendment claims are without merit and the fact that he was ultimately convicted of only

misdemeanors has no bearing on the district court's finding of a Grade A violation. the district As Washington lodges no other challenge to calculation of the applicable policy

court's

statement range, we discern no plain error. Finally, erred because and it to Washington failed provide to a asserts consider that the the 18 district court

U.S.C.

§ 3553(a) for its

factors

sufficient

explanation

imposition of the sentence. to provide any explanation

Because the district court failed for why it imposed the 27-month

sentence or what sentencing factors it considered, the sentence is at least arguably both procedurally we conclude and that substantively Washington's

unreasonable.

Nonetheless,

sentence is not "plainly" unreasonable because the sentence was 7

within the recommended Guidelines range and does not exceed the applicable statutory maximum. Further, Washington does not See

assert any "clear" or "obvious" error in the sentence. Crudup, 461 F.3d at 439.

Accordingly, we affirm the district court's judgment. We also deny Washington's pending motion to expedite decision. 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.

AFFIRMED

8