US v. Willie Massey

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:00-cr-00038-WO-1. Copies to all parties and the district court/agency. [999103866].. [12-4587]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4587

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIE DOUGLAS MASSEY,
Defendant - Appellant.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.
William L. Osteen,
Jr., Chief District Judge. (1:00-cr-00038-WO-1)

Submitted:

April 30, 2013

Decided:

May 8, 2013

Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Noah Clements, THE CLEMENTS FIRM, Washington, D.C., for
Appellant.
Ripley Rand, United States Attorney, Anand P.
Ramaswamy, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Willie

Douglas

Massey

appeals

from

the

twenty-month

sentence imposed after the district court revoked his supervised
release.

Massey was sentenced to two concurrent terms of 112

months of imprisonment and three years of supervised release
following a conviction for one count of possession of a firearm
by a convicted felon (“Count One”), in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006), and one count of possession of
an

unregistered

firearm

U.S.C. § 5861(d) (2006).

(“Count

Three”),

in

violation

of

26

The twenty-month revocation sentence

was comprised of six months related to Count One of the original
judgment

of

conviction

and

fourteen

months

related

to

Count

Three of the original judgment, to be run consecutively.
On appeal, Massey argues that his original judgment
did not include two concurrent terms of supervised release and
that, even if it had, revocation was mandatory under 18 U.S.C.A.
§ 3583(g) (West Supp. 2012) for both in 2011—at the time of his
first revocation of supervised release.

He therefore contends

that there was not an additional eighteen months of supervised
release available for Count Three.

The Government counters that

the law at the time of Massey’s original sentencing required
supervised release terms to be run concurrently for each count
of conviction receiving a sentence of over one year, that the
court is permitted to impose consecutive sentences for violation
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of supervised release, and that the court retained its ability
to

impose

a

sentence

for

Count

Three

at

the

2011

and

2012

revocation sentencings.
Massey failed to object in the district court on the
grounds that he asserts on appeal.
reviewed for plain error.

Therefore, his claim is

See United States v. Bennett, 698

F.3d 194, 199 (4th Cir. 2012), cert. denied, 133 S. Ct. 1506
(2013).

We will affirm a sentence imposed after revocation of

supervised release if it is not plainly unreasonable.

United

States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010).

The

first step in this review requires a determination of whether
the sentence is unreasonable.
433, 438 (4th Cir. 2006).

United States v. Crudup, 461 F.3d

“This initial inquiry takes a more

‘deferential appellate posture concerning issues of fact and the
exercise

of

[G]uidelines
652,

656

discretion’
sentences.”

(4th

(applying

Cir.

States v.

(quoting

Crudup,

unreasonable”

probation revocation).
substantively

reasonableness

United

2007)

“plainly

than

review

Moulden,
461

standard

478

F.3d

at

439)

review

for

F.3d

of

for

Only if the sentence is procedurally or

unreasonable

does

the

inquiry

proceed

to

the

second step of the analysis to determine whether the sentence is
plainly unreasonable.
A
procedurally

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

supervised
reasonable

release
if

the
3

revocation

district

court

sentence

is

considered

the

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advisory policy statement range based upon Chapter Seven of the
Sentencing Guidelines and the 18 U.S.C. § 3553(a) (2006) factors
applicable

to

supervised

release

revocation.

See

§ 3583(e) (2006); Crudup, 461 F.3d at 438-40.

18

U.S.C.

A sentence is

substantively reasonable if the district court stated a proper
basis for concluding the defendant should receive the sentence
imposed, up to the statutory maximum.

Crudup, 461 F.3d at 440.

“A court need not be as detailed or specific when imposing a
revocation

sentence

as

it

must

be

when

imposing

a

post-conviction sentence, but it still must provide a statement
of reasons for the sentence imposed.”

Thompson, 595 F.3d at 547

(internal quotation marks omitted).
Here,

Massey

contends

that

his

sentence

was

procedurally unreasonable because he was sentenced to two terms
of

imprisonment

concurrently.
procedural

that

were

to

run

consecutively

instead

of

We conclude that the district court committed no

error

in

imposing

its

sentence.

The

Government

correctly notes that at the time of Massey’s original sentencing
in 2000, the Sentencing Guidelines were mandatory and the court
was required to impose a term of supervised release on every
count that carried a sentence of more than one year.
Sentencing

Guidelines

review

the

of

Manual

sentencing

§ 5D1.1(a)

transcript

(1999).

reveals

that

See U.S.

Further,
the

intended a term of supervised release to follow each count.
4

a

court

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Where a defendant is sentenced to multiple terms of
imprisonment at the same time, the district court may order that
the sentences run concurrently or consecutively upon revocation
of supervised release.

18 U.S.C. § 3584(a) (2006); see also

United States v. Johnson, 138 F.3d 115, 118-19 (4th Cir. 1998)
(“[W]e hold that the district court had the authority to impose
consecutive

sentences

upon

supervised release.”).

Johnson

when

it

revoked

his

In determining whether the terms will

run concurrently or consecutively, the court must consider the
§ 3553(a) factors.
Here,

18 U.S.C. § 3584(b) (2006).

not

only

did

Massey

fail

to

object

to

the

computation of his sentence at the second revocation sentencing
currently on review, he also did not object to the district
court’s

reimposition

of

an

eighteen-month

term

of

supervised

release on Count Three at the 2011 revocation sentencing.
of

Massey’s

argument

pins

itself

to

the

contention

that

Much
the

court erred in assessing the second term of supervised release
at the 2011 revocation.

However, Massey did not object at the

time or note an appeal from the judgment order.

He cannot now

attempt to argue error by the district court in 2011 when he sat
on his rights at the time and failed to appeal.
Moreover,

the

district

court

complied

with

the

statutory requirements and explicitly stated that it considered
the §§ 3553 and 3583 factors in determining Massey’s sentence.
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As its reasoning for imposing the chosen sentence, the court
cited the seriousness of Massey’s own admission of distribution
of

crack

cocaine

supervised

eight

release,

days

after

Massey’s

he

consistent

began

his

positive

term
tests

of
for

cocaine throughout the supervision process, the close proximity
of the violation to his release, and the substantial need to
protect

the

situated.
highly

public

and

deter

Massey

and

others

similarly

In light of the district court reasoning and the

deferential

district

court

sentence

was

standard

did

not

err

neither

of

review,

in

imposing

procedurally

we

conclude

its
nor

that

sentence

as

the
the

substantively

unreasonable, much less plainly so.
We

therefore

affirm

the

district

court’s

order

revoking supervised release and imposing a term of imprisonment.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

6