US v. Richard Conner

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:06-cr-00206-1 Copies to all parties and the district court/agency. [998961957].. [11-7589, 11-7601]

Appeal: 11-7589

Doc: 30

Filed: 10/18/2012

Pg: 1 of 6

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-7589

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICHARD LEE CONNER,
Defendant - Appellant.

No. 11-7601

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY THOMAS FOYE,
Defendant - Appellant.

Appeals from the United States District Court for the Southern
District of West Virginia, at Charleston.
Irene C. Berger,
District Judge. (2:06-cr-00206-1; 2:99-cr-00023-1)

Submitted:

June 5, 2012

Decided:

Before DUNCAN, DAVIS, and WYNN, Circuit Judges.

October 18, 2012

Appeal: 11-7589

Doc: 30

Filed: 10/18/2012

Pg: 2 of 6

Vacated and remanded with directions by unpublished per curiam
opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellants.
R. Booth Goodwin II, United States Attorney, John J. Frail,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

Appeal: 11-7589

Doc: 30

Filed: 10/18/2012

Pg: 3 of 6

PER CURIAM:
In these consolidated appeals, Richard Lee Conner and
Anthony

Thomas

Foye

orders

reducing

appeal

their

the

district

sentences

court’s

pursuant

to

respective
18

U.S.C.

§ 3582(c)(2) (2006) and modifying the terms of their supervised
release by requiring that they reside in a community confinement
center

for

judgments

ninety
and

days.

remand

with

We

vacate

directions

the
to

district
strike

court’s

the

added

conditions of supervised release.
In 2007, Conner pled guilty to distribution of cocaine
and cocaine base, in violation of 21 U.S.C. § 841(a)(1) (2006),
and

was

sentenced

to

eighty-four

months’

imprisonment.

The

district court granted Conner’s subsequent motion for reduction
in sentence pursuant to § 3582(c)(2) in light of Amendment 706,
reducing his sentence to sixty-three months in prison.

In 2011,

Conner filed a second motion for reduction in sentence, seeking
the

benefit

applicable

on

of

Amendment

November

1,

750,
2011.

which
The

became
district

retroactively
court

granted

Conner’s motion and reduced his sentence to fifty-one months’
imprisonment.

In addition, because the court anticipated that

Conner’s release from the Bureau of Prisons was imminent, and
that Conner would benefit from a period of adjustment upon his
return to the community, it ordered Conner to “complete a period
of ninety days in a halfway house . . . as a modification of his
3

Appeal: 11-7589

Doc: 30

Filed: 10/18/2012

Pg: 4 of 6

conditions of supervised release.”

Such a condition had not

been ordered at the time of sentencing.
In 1999, Foye pled guilty to distribution of cocaine
base and possession of cocaine base with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1) (2006), and was sentenced
to 235 months in prison.

Thereafter, the district court granted

Foye’s motion for reduction of sentence pursuant to § 3582(c)(2)
in

light

of

Amendment

months’ imprisonment.

706,

reducing

Foye’s

sentence

granted

Foye’s

months in prison.

188

In 2011, Foye moved once again for a

reduction in sentence following Amendment 750.
court

to

motion

and

reduced

his

The district

sentence

to

151

As it had ordered in Conner’s case, the court

also imposed a 90-day stay in a Community Correctional Center
upon

Foye’s

release

“as

a

modification

of

his

conditions

of

supervised release.”
Conner
the

district

and

court

Foye
erred

subsequently
by

appealed,

modifying

the

arguing

terms

of

that
their

supervised release without conducting a hearing, as required by
Fed. R. Crim. P. 32.

We review a district court’s decision

regarding whether to reduce a sentence under § 3582(c)(2) for
abuse of discretion.

United States v. Munn, 595 F.3d 183, 186

(4th Cir. 2010) (citation omitted).
discretion
premise.

if

it

relies

on

an

A district court abuses its
erroneous

factual

or

legal

DIRECTV, Inc. v. Rawlins, 523 F.3d 318, 323 (4th Cir.
4

Appeal: 11-7589

2008)

Doc: 30

Filed: 10/18/2012

(internal

quotation

§ 3582(c)(2),

a

district

Pg: 5 of 6

marks
court

omitted).
may

Pursuant

modify

the

term

to
of

imprisonment “of a defendant who has been sentenced . . . based
on a sentencing range that has subsequently been lowered by the
Sentencing

Commission,”

retroactively applicable.

if

the

Guidelines

amendment

is

18 U.S.C. § 3582(c)(2).

As Amendment 750 reduced the advisory Guidelines range
for both Conner and Foye, the district court did not abuse its
discretion in reducing their respective sentences.

However, the

district court exceeded its authority by modifying the terms of
the Defendants’ supervised release without first conducting a
hearing or obtaining waiver of such hearing.

Pursuant to Fed.

R. Crim. P. 32.1(c)(1), “[b]efore modifying the conditions of
probation or supervised release, the court must hold a hearing,
at which the person has the right to counsel and an opportunity
to make a statement and present any information in mitigation.”
A hearing is not required if the defendant waives the hearing or
the

relief

sought

is

favorable

to

the

defendant

and

the

Government has received notice of the relief sought, has had a
reasonable opportunity to object, and has not done so.
Crim. P. 32.1(c)(2).
to

a

hearing,

and

Fed. R.

Neither Conner nor Foye waived the right
the

Government

concedes

that

the

district

court erred when it modified their supervised release conditions
as described above.
5

Appeal: 11-7589

Doc: 30

We

Filed: 10/18/2012

previously

Pg: 6 of 6

stayed

the

during the pendency of these appeals.

district

court’s

orders

It is apparent to us that

Conner and Foye have long since returned to the community from
the Bureau of Prisons and that the aim of the district court’s
modified conditions of release cannot be attained.
we

vacate

the

district

court’s

judgments

and

Accordingly
remand

with

directions to strike the added conditions of supervised release.
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.

VACATED AND REMANDED WITH DIRECTIONS

6