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UNPUBLISHED PER CURIAM OPINION filed.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]

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US v. James Strickland Doc. 0 Case: 10-4240 Document: 23 Date Filed: 12/27/2010 Page: 1 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4240 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ANTONIO STRICKLAND, a/k/a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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Case: 10-4240 Document: 23 Date Filed: 12/27/2010 Page: 2 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. 2 Case: 10-4240 Document: 23 Date Filed: 12/27/2010 Page: 3 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 Case: 10-4240 Document: 23 Date Filed: 12/27/2010 Page: 4 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 Case: 10-4240 Document: 23 Date Filed: 12/27/2010 Page: 5 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 5

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