US v. Ronald McCrary

Filing 920100514

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4022

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. RONALD MICHAEL MCCRARY, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Rebecca Beach Smith, District Judge. (2:07-cr-00037-RBS-TEM-1)

Submitted:

April 26, 2010

Decided:

May 14, 2010

Before NIEMEYER, DUNCAN, and DAVIS, Circuit Judges.

Vacated by unpublished per curiam opinion.

G. Godwin Oyewole, ATLANTIC LEGAL FOUNDATION, INC., Washington, D.C., for Appellant. Laura Marie Everhart, Assistant United States Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: On December 11, 2007, following a supervised release hearing, the district court found that Ronald Michael McCrary violated the terms of his supervised release, and imposed a

160-day sentence, with credit for time served.

The district

court also placed McCrary on supervised release for a period of three years following his release, ordered that he complete a six-month residential drug treatment program, and ordered that he receive substance abuse treatment and counseling for the

duration of his supervised release term.

On December 20, 2007,

the district court amended its order, nunc pro tunc, to state that upon release from confinement, McCrary shall be on

supervised release for a term of 205 days. While it is unclear exactly when McCrary was released from confinement, it is apparently undisputed that his

supervised release term began no later than December 20, 2007. It further appears undisputed that McCrary had been in custody awaiting a final supervised release hearing and sentencing on violations from on or about March 19, 2007 until on or about May 1, 2007, and again from on or about 2007 August date 27, of 2007 the until final

sometime

between

December

11,

(the

hearing on the violations) and December 20, 2007 (the date the district appears court that entered when the its nunc pro tunc order). the Thus, it

district 2

court

imposed

160-day

sentence on December 11, 2007, McCray had served approximately 149 days in custody and was entitled to credit against his 160day sentence of at least 149 days. that, assuming the district Accordingly, it would appear court intended to retain

jurisdiction over the matter for a period of approximately one year after the final hearing (160 days plus 205 days), the

district court may have misapprehended the effect of the period McCrary had been in custody when it entered its nunc pro tunc order. In any event, on November 4, 2008, a United States probation McCrary officer filed the a revocation terms of his petition alleging that in

had

violated

supervised

release

numerous ways during 2008.

On December 16, 2008, following a

revocation hearing, the district court found that McCrary had again violated the terms of his supervised release, and

sentenced him to a term of 18 months and 20 days' imprisonment. McCrary appealed. McCrary's counsel has filed a brief with this court, pursuant to Anders v. California, 386 U.S. 738 (1967),

concluding that this matter does not present any meritorious issues on appeal. Indeed, as suggested above, counsel seems to

aver that the district court intended the 205 days of supervised release to commence 160 days from the date of the nunc pro tunc order. The Government has filed 3 a letter agreeing with

counsel's

Anders

brief

and

waiving

the

right

to

respond.

Nevertheless, the record is clear that the district court (1) ordered that McCrary shall receive credit for the time he spent in custody awaiting in 2007 final and (2) disposition ordered of the the violations period he of

committed

205-day

supervised release to commence "upon his release from custody." McCrary has filed a pro se supplemental brief that identifies this aspect of the procedural history of this case. Jurisdiction is a question of law subject to de novo review. 1994). United States v. Barton, 26 F.3d 490, 491 (4th Cir. Once questioned, the party advocating the exercise of

jurisdiction bears the burden of demonstrating its existence. Mylan Lab., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993). waived. Subject matter jurisdiction cannot be forfeited or

United States v. Cotton, 535 U.S. 625, 630 (2002). In his pro se brief, McCrary questions whether the

district

court

had

jurisdiction

to

revoke

his

supervised

release, which he maintains had previously expired, and/or to sentence him to a term of imprisonment. McCrary cites to the

district court's amended order of December 20, 2007, which set his term of supervised release at 205 days, as the basis for his argument. We find that McCrary's argument is meritorious. Because McCrary's supervision began on

December 20, 2007, his 205-day term of supervision expired on or 4

about July 12, 2008, absent further modification, which it does not appear occurred. As the probation officer did not file a

revocation petition until November 4, 2008, the district court lacked jurisdiction to revoke McCrary's supervised release, as his term had already expired, much less to sentence him to a term of imprisonment. court may revoke a See, e.g., 18 U.S.C. § 3583(i) (2000) (A term of supervised release after the

supervised release term expires "if, before its expiration, a warrant or summons has been issued on the basis of an allegation of [] a violation."); retain see also to Barton, hold 26 F.3d 490, 491-92 to

(Courts

jurisdiction

hearings

related

revocation of supervised release for a reasonable period after the term of release expires when a petition charging a violation of the conditions of of supervised release.). release is filed we during vacate the the

period

supervised

Accordingly,

district court's judgment. VACATED

5