US v. James Strickland

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UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:97-cr-00135-F-1 Copies to all parties and the district court/agency. [998491456] [10-4240]

US v. James Strickland

Doc. 0

Case: 10-4240 Document: 23

Date Filed: 12/27/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4240 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ANTONIO STRICKLAND, a/k/a Stricknine, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:97-cr-00135-F-1) Submitted: December 16, 2010 Decided: December 27, 2010

Before GREGORY, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: James Strickland appeals from the sixty-month

sentence imposed pursuant to the revocation of his supervised release. unreasonable committed reduction a to Strickland because Grade his A contends court the erred and sentence in in based was plainly he a had

the

determining considering on the

violation

prior

original

sentence

retroactive We affirm. supervised applicable United In the

amendment to the crack cocaine sentencing guideline. A release sentence be imposed after if it revocation is within of the

should

affirmed and is

statutory

maximum

not

plainly

unreasonable.

States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). making this determination, we first consider whether

sentence is unreasonable.

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 guideline sentences." 652, 656 (4th Cir. 2007). generally the procedural United States v. Moulden, 478 F.3d In making our review, we "follow and substantive considerations that

[are] employ[ed] in [the] review of original sentences, . . . with some necessary of modifications to take into account the

unique

nature

supervised

release

revocation

sentences."

Crudup, 461 F.3d at 438-39.

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A procedurally Chapter

sentence

imposed if

upon

revocation court 18

of

release

is the

reasonable policy

the

district and the

considered §

Seven

statements

U.S.C.

3553(a)

(2006) factors that it is permitted to consider. § 3583(e) (2006); Crudup, 461 F.3d at 438-40.

See 18 U.S.C. A sentence

imposed upon revocation of release is substantively reasonable if the district court stated a proper basis for concluding that the defendant should receive the sentence imposed, up to the statutory maximum. the sentence is is Crudup, 461 F.3d at 440. unreasonable. or Id. at We will affirm if 439. Only if a

not

sentence

found

procedurally

substantively

unreasonable

will we "decide whether the sentence is plainly unreasonable." Id. Strickland argues that the district court erred in

concluding that his most serious new law violation was a Grade A violation rather than a Grade B violation. A Grade A violation

results from "conduct constituting a federal, state, or local offense punishable by a term of imprisonment exceeding one year that ... is a controlled A substance offense." offense or USSG for

§ 7B1.1(a)(1), purposes of

p.s..

controlled p.s.,

substance state

§ 7B1.1(a)(1),

includes

federal

crimes prohibiting the distribution of a controlled substance, as well as the possession of a controlled substance with the intent to distribute, and that are punishable by more than a 3

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year in prison.

USSG §§ 4B1.2(b), 7B1.1, p.s., comment. (n.3).

Any other offense punishable by more than a year in prison is a Grade B violation. USSG § 7B1.1(a)(2), p.s.. The commentary to

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

charges

which

defendant

convicted

proceeding.

Rather, the grade of violation is to be based on USSG § 7B1.1, p.s., comment.

the defendant's actual conduct."

(n.1); see United States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002) (violation of terms of supervised release is

determined based on defendant's conduct and may be found whether defendant Further, was ever a convicted of any particular proof offense). beyond a

although

conviction

requires

reasonable doubt, a violation of supervised release need only be proved by a preponderance of the evidence. See 18 U.S.C.

§ 3583(e)(3). Strickland contends that his supervised release

violation was a Grade B violation because the drugs he admitted to possessing were for his personal use and not intended for distribution. that the We conclude that Strickland failed to demonstrate erred in finding by a preponderance of the

court

evidence that the drugs were intended for distribution and not personal use. The court did not err in determining that

Strickland's conduct constituted a Grade A violation nor abuse 4

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its

discretion and

in

considering has

its

prior

reduction the

of

his

sentence,

Strickland

not

shown

that

sixty-month

sentence was plainly unreasonable. We therefore affirm the sentence. oral argument because in the the facts and legal before We dispense with contentions the court are and

adequately

presented

materials

argument would not aid the decisional process. AFFIRMED

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