US v. Freedom Born Divine

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cr-00168-MSD-TEM-1 Copies to all parties and the district court/agency. [999250916].. [13-4385]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4385

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREEDOM BORN DIVINE, a/k/a Rico Rivers,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Mark S. Davis, District
Judge. (2:11-cr-00168-MSD-TEM-1)

Submitted:

November 6, 2013

Decided:

December 3, 2013

Before SHEDD and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam.

Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Norfolk, Virginia, for Appellant.
Neil H.
MacBride,
United
States
Attorney,
V.
Kathleen
Dougherty,
Assistant
United
States
Attorney,
Norfolk,
Virginia,
for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Freedom Born Divine appeals the fifteen-month sentence
imposed upon the revocation of his supervised release term.
appeal,

Divine

asserts

that

his

revocation

sentence

On
was

procedurally unreasonable, because the court erred in concluding
that

his

properly

most

serious

classified

as

violation—possession
a

Grade

B

of

marijuana—was

violation.

Finding

no

reversible error, we affirm.
Generally,

we

will

affirm

a

sentence

imposed

upon

revocation of supervised release unless the sentence is “plainly
unreasonable.”

See United States v. Crudup, 461 F.3d 433, 437

(4th Cir. 2006).

We first determine whether the sentence is

unreasonable, applying the same general inquiry used to assess
the reasonableness of original sentences.

Id. at 438.

If the

sentence is found unreasonable, we must determine whether it is
“plainly” so, relying on the same definition of “plain” applied
when

conducting

a

plain-error

analysis.

United

States

v.

Thompson, 595 F.3d 544, 547-48 (4th Cir. 2010).
Because Divine did not challenge in the district court
the characterization of his possession-of-marijuana violation as
a Grade B violation, we review the issue for plain error.

See

United States v. Bennett, 698 F.3d 194, 199 (4th Cir. 2012),
cert. denied, 133 S. Ct. 1506 (2013).

To establish plain error,

Divine must show (1) an error occurred, (2) the error was plain,
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and

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(3)

the

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error

affected

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his

substantial

rights.

States v. King, 628 F.3d 693, 699 (4th Cir. 2011).

United

Even if he

makes this showing, we will exercise our discretion to reverse
“only if the error seriously affects the fairness, integrity or
public reputation of judicial proceedings.”

United States v.

Powell, 680 F.3d 350, 358 (4th Cir.) (internal quotation marks
omitted),

cert.

denied,

133

S.

Ct.

376

(2012).

“The

term

‘plain’ error is synonymous with ‘clear’ or ‘obvious’ error.

An

error is plain if the settled law of the Supreme Court or this
circuit establishes that an error has occurred.”

United States

v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (some internal
quotation

marks

omitted;

citations

omitted);

see

also

United

States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012) (“[W]here
we

have

yet

to

speak

directly

on

a

legal

issue

and

other

circuits are split, a district court does not commit plain error
by following the reasoning of another circuit.”).
Divine asserts that the district court plainly erred
in classifying his marijuana possession as a Grade B violation,
rather than a Grade C violation.

Grade A violations include

conduct constituting (A) a federal, state, or local
offense punishable by a term of imprisonment exceeding
one year that (i) is a crime of violence, (ii) is a
controlled
substance
offense,
or
(iii)
involves
possession of a firearm or destructive device of a
type described in 26 U.S.C. § 5845(a); or (B) any
other federal, state, or local offense punishable by a
term of imprisonment exceeding twenty years.

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U.S. Sentencing Guidelines Manual (“USSG”) § 7B1.1(a)(1), p.s.
(2003).

Grade B violations include “conduct constituting any

other federal, state, or local offense punishable by a term of
imprisonment
Grade

C

exceeding

violations

one

year.”

include

USSG

conduct

§ 7B1.1(a)(2),

constituting

any

p.s.
other

criminal offense punishable by a year or less of imprisonment or
any other violation of a supervised release condition.
§ 7B1.1(a)(3), p.s.

USSG

“The grade of violation does not depend

upon the conduct that is the subject of criminal charges or of
which

the

Rather,

defendant

the

grade

is

of

convicted

the

defendant’s actual conduct.”
The

parties

agree

in

violation

a
is

criminal
to

be

proceeding.

based

on

the

USSG § 7B1.1 cmt. n.1.
that

Divine’s

conduct

would

be

punishable as a federal offense under 21 U.S.C. § 844(a) (2012),
which

criminalizes

substance.

the

simple

possession

of

a

controlled

A person who violates this provision and has no

prior drug conviction is subject to a maximum sentence of one
year of imprisonment.
provision

and

has

a

Id.
prior

However, a person who violates this
drug

conviction

is

subject

sentence of fifteen days’ to two years’ imprisonment.
Although

Divine’s

criminal

history

reveals

to

a

Id.
at

least

one prior controlled substance conviction, he asserts that this
prior conviction is not “conduct” relevant in determining the
classification for his supervised release violation.
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He relies

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upon both Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and
United States v. Simmons, 649 F.3d 237, 243 (4th Cir. 2011) (en
banc), to argue that the court could not consider the recidivist
enhancement for his hypothetical § 844(a) offense because the
Government

was

unable

to

comply

with

the

protections

of

21

U.S.C. § 851 (2012) in the context of a revocation proceeding.
He also identifies authority affirming revocation sentences for
simple possession violations that were classified as Grade C
violations.
In response, the Government argues that the district
court did not err in classifying Divine’s offense as a Grade B
violation, as Divine was eligible for the recidivist enhancement
due to his prior conviction, and § 851 notice requirements are
inapplicable in the supervised release context.

The Government

also distinguishes Carachuri-Rosendo and Simmons and identifies
unpublished cases affirming revocation sentences in which simple
possession violations were classified as Grade B violations.
Ultimately, we need not resolve this dispute, as any
error

by

court’s

the

district

conclusion

that

court

was

Divine’s

not

“plain.”

marijuana

The

district

possession

was

a

Grade B offense is supported by unpublished authority from this
circuit, e.g., United States v. Jemerson, 132 F. App’x 488, 48990 (4th Cir. 2005) (No. 04-5008); United States v. Justice, 70
F. App’x 719, 720 (4th Cir. 2003) (No. 03-4388), as well as
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authority from other circuits, see United States v. Trotter, 270
F.3d

1150,

1154

(7th

Cir.

2001)

(recognizing

that,

when

determining whether defendant’s conduct is punishable by more
than one year of imprisonment in context of supervised release
revocation,

“court

must

determine

whether

the

conduct

is

a

felony (etc.) after prior convictions are taken into account”);
United States v. Crace, 207 F.3d 833, 837-38 (6th Cir. 2000)
(permitting court to consider prior convictions when determining
whether conduct was properly classified as Grade B violation);
United States v. Seiber, 516 F. App’x 208, 214-16 (3d Cir. 2013)
(No. 12-2523) (rejecting argument, under Carachuri-Rosendo, that
§ 851 notice was required to apply recidivist enhancement when
determining

possible

penalty

for

simple

possession,

and

concluding recidivist simple possession is Grade B violation);
United States v. Jackson, 510 F. App’x 149, 155-56 (3d Cir.)
(No.

12-2390)

(rejecting

argument

that

supervised

release

violation based on simple possession could not be Grade B felony
unless Government filed § 851 information), cert. denied, 133 S.
Ct. 1477 (2013).

Moreover, to the extent Carachuri-Rosendo and

Simmons may provide support for Divine’s conclusion that his
conduct was a Grade C violation, they do not clearly compel that
conclusion,

as

they

do

not

address

context of revocation proceedings.
unpublished

authority

finding

possession

in

the

Thus, while this circuit’s

simple
6

drug

possession

offenses

as

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Grade B violations predates both Carachuri-Rosendo and Simmons,
neither Carachuri-Rosendo nor Simmons so clearly abrogates the
court’s prior reasoning as to require reversal for plain error.
The district court’s classification of Divine’s conduct as a
Grade B offense therefore did not run afoul of any settled law
and was not obviously incorrect under available authority.
Because

Divine

cannot

demonstrate

affirm the district court’s judgment.

plain

error,

we

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this court and argument would
not aid the decisional process.

AFFIRMED

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