US v. Michael Hardison

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:95-cr-00083-BO-1. Copies to all parties and the district court. [999615676]. [14-4444]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4444

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL EUGENE HARDISON, a/k/a Hook Shot,
Defendant – Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
Terrence W. Boyle,
District Judge. (5:95-cr-00083-BO-1)

Argued:

May 12, 2015

Decided:

July 7, 2015

Before MOTZ, KING, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED:
Robert Earl Waters, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.
Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.
ON BRIEF: Thomas P. McNamara,
Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant.
Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, Kristine L. Fritz, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
In

1996,

Michael

Eugene

Hardison

was

sentenced

in

the

Eastern District of North Carolina to 204 months in prison and
five years of supervised release, following his convictions for
drug-

and

gun-related

offenses.

Hardison

was

released

from

prison and began his term of supervised release in March 2010,
and

in

May

2013

the

district

court

ruled

that

Hardison

had

violated the conditions of his release by engaging in criminal
conduct relating to drug distribution.

Supervised release was

therefore revoked, and the court imposed a statutory maximum
revocation sentence of sixty months.
sentence,

contending

that

substantively unreasonable.

it

Hardison has appealed that

is

both

procedurally

and

As explained below, we affirm.

I.
Hardison’s

convictions

were

the

denouement

of

a

lengthy

federal investigation into a Fayetteville, North Carolina drug
distribution network known as the “Long Road Boys.”

Hardison

had cofounded the Long Road Boys in 1989, recruiting residents
of

the

Grove

View

Terrace

public

housing

powder cocaine and cocaine base (“crack”).
inception,
campaign

Hardison
of

and

violence

his
and

project

peddle

From the network’s

partners-in-crime
intimidation

to

embarked

against

rival

on

a

drug

distributors to protect and expand their criminal enterprise.
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More specifically, Hardison instigated and perpetuated so-called
“turf wars” by arming his employees with semiautomatic weapons
and ordering them to shoot rival distributors.
On

May

18,

1995,

a

federal

grand

jury

in

the

Eastern

District of North Carolina indicted Hardison and eleven other
Long

Road

Boys

on

twenty

drug

and

weapons

offenses.

The

indictment charged Hardison in five counts and identified him as
the group’s ringleader.
guilty

to

conspiracy

On September 11, 1995, Hardison pleaded
to

possess

with

intent

to

distribute

cocaine and crack, in violation of 21 U.S.C. § 846, and to using
a firearm during and in relation to a drug trafficking crime, in
contravention of 18 U.S.C. §§ 924(c)(1) and 2.

On April 9,

1996, Hardison was sentenced to 204 months in prison, to be
followed by five years of supervised release.
of

supervised

release

was

subject

to

Hardison’s term

several

conditions,

including that he submit to drug-screen urinalysis and refrain
from criminal conduct.

Hardison was released from confinement

in March 2010 and commenced his term of supervised release.
On September 11, 2013, after serving more than three years
of

supervised

urine

sample

officer
release.

thus

release
that

was

filed

a

without

incident,

positive
motion

to

for

Hardison

cocaine.

revoke

submitted

His

Hardison’s

a

probation
supervised

On November 15, 2013, the district court conducted a

revocation hearing and determined that Hardison had violated the
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terms

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of

his

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supervision.

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Nevertheless,

the

court

denied

revocation, determining that “the ends of justice would best be
served by . . . continuing supervision under the original terms
J.A. 27. 1

and conditions imposed.”

On April 21, 2014, the probation officer filed a second
motion

for

revocation

of

supervised

amended motion two days later.

release,

followed

by

an

The probation officer alleged

that Hardison had recently committed numerous drug and weapons
offenses in Cumberland County in violation of the terms of his
supervised release.

The probation officer did not, however,

submit a worksheet containing a recommended sentencing range for
Hardison.
The district court conducted a second revocation hearing on
May 30, 2014, and the prosecution called Officer Aaron Hunt of
the Fayetteville Police Department as a witness.

Hunt testified

that he first became aware of Hardison in early 2014 during the
course

of

Hardison

a

narcotics

“continuously

investigation.
hanging

out”

Hunt
at

two

had

witnessed

Fayetteville

residences where suspected drug activity was taking place.
J.A. 15.

See

Hunt was informed that Hardison was the “main guy who

brought all the narcotics to [Hunt’s] target houses,” and he

1

Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

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opened a formal investigation into Hardison’s activities.
id. at 16.

See

Over the next six weeks, Hunt observed Hardison

engage in numerous hand-to-hand drug transactions with passing
vehicles.

On arresting one of the buyers, Hunt was advised that

the arrestee had purchased cocaine from Hardison.
According
Fayetteville
home,

to

Officer

police

seizing

Hunt,

executed

several

items

a

on

April

search

inside

21,

warrant

the

on

2014,

the

Hardison’s

residence

that

were

“indicative of manufacturing and packaging narcotics for sale.”
See J.A. 18-19.
Colt

.38

Officers also found 25.3 grams of crack and a

special

residence.

revolver

hidden

in

plastic

bags

behind

the

Based on Hunt’s evidence, the district court ruled

that Hardison had violated the terms of his supervised release
by possessing with intent to sell and deliver cocaine and crack,
maintaining

a

place

for

the

manufacture

of

cocaine,

and

possessing a firearm.
Hardison admitted his criminal conduct but offered several
arguments

in

mitigation,

seeking

a

lenient

sentence.

He

emphasized that he was nearing the end of his five-year term of
supervised release, and had only one prior violation.

He also

asserted that he had been gainfully employed and had a close
relationship with his siblings.

Finally, Hardison pointed out

that his employer was present at the hearing and had submitted a
letter on Hardison’s behalf.
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The district court denied Hardison’s request for leniency,
invoking

Hardison’s

earlier

revocation

hearing.

The

court

explained:
Did [Hardison] not understand that [the court’s prior
leniency] was an exercise in trust, T-R-U-S-T, that
the court was willing to take a chance, which turned
out to be a foolish chance and a repudiated chance,
and that the court and the government and the law put
their trust in him to be sincere about his willingness
to avoid crime and drugs and be a drug person.
And
now he’s proven all of that to be mistaken.
So the
punishment has to be equivalent to the breach of trust
and multiple violations.
J.A.

22.

The

court

underscored

that

Hardison

had

made

an

“absolute mockery” of the supervised release system, id. at 24,
observing that
[Hardison]
really
has
virtually
no
sympathy
or
position to argue here.
He’s completely without any
credibility, just totally without any credibility. He
had a serious sentence that he did and now he’s been
back twice on revocation . . . .
He should get the
maximum punishment.
Id. at 23.
The

district

court

then

imposed

sentence of sixty months in prison. 2

the

statutory

maximum

That same day, the court

entered a written order setting forth its rationale for imposing
the statutory maximum sentence.

See United States v. Hardison,

No. 5:95-cr-00083 (E.D.N.C. May 30, 2014), ECF No. 402.
2

The

Hardison’s statutory maximum revocation sentence was sixty
months because his conspiracy conviction was a class A felony.
See 18 U.S.C. §§ 3583(e)(3), 3559(a)(1).

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court explained therein that Hardison was charged with violating
the terms of his supervised release by engaging in the “same or
similar” conduct that had formed the basis of his underlying
convictions.

Id. at 2.

The court further noted that neither

the 204-month sentence nor the court’s prior leniency had been
sufficient

to

deter

Hardison

from

engaging

in

the

sale

of

illegal narcotics, and that the maximum sentence was needed to
protect

the

public

considered

and

mitigation.

from

Hardison.

rejected

Id.

Hardison’s

Finally,

various

the

court

arguments

in

Id.

It is uncontested that the policy statements in Chapter
Seven

of

receive

the
a

Sentencing

revocation

months in prison. 3

Guidelines

sentence

of

called

for

thirty-seven

Hardison
to

to

forty-six

The district court, however, made no explicit

reference to that sentencing range during the revocation hearing
or in its subsequent order.
the

government

referenced

the

Additionally, neither Hardison nor

argued

for

a

specific

policy

statement

range.

revocation

sentence

Hardison

failed

or
to

object to the revocation sentence imposed by the court.

3

Hardison’s policy statement range called for thirty-seven
to forty-six months in prison because he committed a Grade A
violation of his release and had a criminal history category of
IV. See USSG § 7B1.1(a)(1) (2012).

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Hardison
revocation

has

timely

sentence

jurisdiction

is

pursuant

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appealed,

plainly

to

18

contending

that

unreasonable.

U.S.C.

§ 3742(a)

We
and

the

possess

28

U.S.C.

§ 1291.

II.
We are not to vacate a revocation sentence “if it is within
the

statutory

United

maximum

States

v.

and

is

Webb,

not

738

‘plainly

F.3d

638,

unreasonable.’”
640

(4th

Cir.

2013) (quoting United States v. Crudup, 461 F.3d 433, 438 (4th
Cir.

2006)).

The

proper

inquiry

first

assesses

whether

the

sentence was either procedurally or substantively unreasonable.
See Crudup, 461 F.3d at 438-39.

If the sentence is unreasonable

on either ground, we must also identify whether it was “plainly”
so.

Id. at 439.
Where a defendant fails to preserve a claim of error in the

sentencing court, we review the issue for plain error only.
Webb, 738 F.3d at 640-41.

See

To satisfy plain error review, the

appellant bears the burden of establishing that (1) the district
court

erred;

(2)

the

error

was

“plain”;

“affect[ed his] substantial rights.”
507 U.S. 725, 732 (1993).

and

(3)

the

error

United States v. Olano,

If the three-part plain error test is

satisfied, we must decide whether to cure the error, “and should
not

do

so

unless

the

error

‘seriously
9

affects

the

fairness,

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integrity
United

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or

public

States

v.

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reputation

Hargrove,

of

625

judicial

F.3d

proceedings.’”

170,

184

(4th

Cir.

2010) (quoting Olano, 507 U.S. at 736).

III.
On

appeal,

Hardison

challenges

the

procedural

reasonableness of his revocation sentence on the ground that the
district court failed to consider his policy statement range of
thirty-seven to forty-six months prior to imposing a maximum
revocation sentence of sixty months.

Hardison also maintains

that the revocation sentence was substantively unreasonable, in
that the

court

failed

to

adequately

justify

its

decision

to

deviate from the policy statement range.
A.
In deciding whether to revoke a term of supervised release,
a district court is guided by policy statements contained in
Chapter

Seven

factors

of

the

applicable

Guidelines,
to

should

fashion

a

well

revocation

U.S.C. §§ 3553(a) and 3583(e).
court

as

the

sentences

statutory
under

18

Chapter Seven instructs that a

revocation

sentence

primarily the breach of [the court’s] trust.”
A(3) (2012).

as

to

“sanction

USSG ch. 7, pt.

Chapter Seven also provides for a policy statement

range that is calculated on the basis of the severity of the
underlying

violation

as

well
10

as

the

defendant’s

criminal

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history.

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See id. § 7B1.4.

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Section 3583(e) of Title 18, which

governs supervised release, further directs a court to consider
factors enumerated in § 3553(a) prior to imposing a revocation
sentence,

including

the

sentencing

range

established

by

the

applicable policy statements, the need to deter future criminal
conduct,

and

the

criminal activity.
Hardison

need

to

protect

the

public

from

further

See 18 U.S.C. § 3553(a)(2)(B)-(C), (a)(4).

challenges

the

procedural

reasonableness

of

his

revocation sentence on the ground that the district court failed
to consider his policy statement range.

Applying a plain error

standard of review, we first assess whether an error occurred ——
that is, was Hardison’s sentence procedurally unreasonable.

The

Supreme Court has recognized that a court imposes a procedurally
unreasonable sentence if it commits a “significant procedural
error”

in

the

course

of

sentencing,

including

calculate . . . the Guidelines range.”
552 U.S. 38, 51 (2007).
supervised
consider

release

. . .

the

revocation sentence.

to

Gall v. United States,

We have applied that principle to

violations,
policy

“failing

ruling

statement

that

range”

a
when

court

“must

imposing

a

See United States v. Moulden, 487 F.3d

652, 656 (4th Cir. 2007); see also Gall, 552 U.S. at 49 (“[A]
district
correctly

court

should

begin

calculating

all
the

range.” (emphasis added)).
11

sentencing
applicable

proceedings

by

Guidelines

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Notably, the record gives no indication that the district
court considered Hardison’s policy statement range of thirtyseven to forty-six months.

The court failed to reference that

range at the revocation hearing or in its written revocation
order, and neither Hardison’s probation officer nor his counsel
alerted the court to the policy statement range.

Cf. United

States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) (determining
that revocation sentence was not procedurally unreasonable when,
although not mentioning policy statement range, court referenced
range specified in probation officer’s worksheet and counsel’s
argument, thus showing that range was in court’s contemplation).
In this situation, we cannot say that the range was within the
court’s contemplation at sentencing.

Accordingly, we conclude

that the court committed a procedural error, thereby rendering
its

sentence

procedurally

unreasonable.

The

first

prong

of

plain error review is thus satisfied.
Next, we must decide whether the error was plain, which in
this

case

requires

an

assessment

of

unreasonable

unreasonable.

See United States v. Crudup, 461 F.3d 433, 439

Cir.

definition
Thus,

a

sentencing

2006).
of

In

“plain”

sentence
error

from

can
is

conducting
our

that

plain

was

Hardison’s

procedurally

(4th

sentence

whether

inquiry,
error

only

be

plainly

“clear”

or

“obvious,”

12

also

we

plainly

apply

principles.

unreasonable
id.,

in

the
Id.

if

the

that

the

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sentence “run[s] afoul of clearly settled law,” United States v.
Thompson, 595 F.3d 544, 548 (4th Cir. 2010).

We have authority

for the proposition that a revocation sentence imposed absent
consideration

of

the

applicable

procedurally unreasonable.
Crudup,

461

procedurally

F.3d

at

advisory range).

statement

range

is

See, e.g., Moulden, 478 F.3d at 656;
440

reasonable

policy

(deeming

because

court

revocation
expressly

sentence
considered

By failing to consider the policy statement

range prior to sentencing, the district court imposed a plainly
unreasonable sentence.

Thus, Hardison has also satisfied the

second prong of plain error review.
The determination that the district court imposed a plainly
unreasonable sentence does not end our inquiry.

We next assess

whether the court’s plain error affected Hardison’s substantial
rights.

See United States v. Olano, 507 U.S. 725, 732 (1993).

To satisfy Olano’s third prong in the context of a revocation
sentencing, Hardison “must show that he would have received a
lower sentence had the error not occurred.”

See United States

v. Knight, 606 F.3d 171, 178 (4th Cir. 2010); see also United
States

v.

McLaurin,

2014) (explaining
record

to

that

conclude

764
there

lower

F.3d
must

372,

be

sentence

388

(4th

nonspeculative

would

have

been

Cir.

basis

in

imposed).

This is the prong where Hardison fails, in that he has not shown
a

nonspeculative

basis

upon

which
13

to

vacate

his

sentence.

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Indeed,

the

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court

was

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unequivocal

in

its

determination

that

Hardison had “no sympathy or position to argue” as a result of
his earlier breach of the court’s trust, and that Hardison had
made an “absolute mockery” of the supervised release system.
See J.A. 23; cf. McLaurin, 764 F.3d at 388 (vacating sentence
where

district

Guidelines

court

range).

expressed
The

serious

court

concern

specifically

with

advisory

concluded

that

Hardison should receive the “maximum punishment,” see J.A. 23,
referring to the statutory maximum sentence of sixty months.
would

thus

be

“pure

speculation”

for

us

to

decide

that

It
the

sentencing court would have imposed a lower sentence if it had
considered Hardison’s policy statement range.

See Knight, 606

F.3d at 179.

In these circumstances, Hardison’s substantial

rights

not

have

been

affected,

and

his

procedural

unreasonableness contention does not satisfy plain error review.
B.
Hardison

also

contends

that

his

revocation

sentence

was

substantively unreasonable because the district court failed to
adequately explain why his sentence was substantially in excess
of the policy statement range.
sentencing,

the

district

In the context of a revocation

court’s

explanation

of

its

sentence

“need not be as specific” as that required for a sentence which
departs

or

varies

from

a

traditional

Guidelines

range.

Moulden, 478 F.3d at 657 (internal quotation marks omitted).
14

See
We

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will

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therefore

uphold

a

Pg: 15 of 16

revocation

sentence

as

substantively

reasonable if the court has “sufficiently stated a proper basis
for its conclusion.”

See Crudup, 461 F.3d at 440.

In Crudup,

we affirmed the imposition of the statutory maximum sentence as
substantively

reasonable,

notwithstanding

the

exceeded the applicable policy statement range.

fact

that

See id.

it

In so

ruling, we observed that the court based its sentence on several
relevant

factors,

including

that

the

defendant

had

committed

numerous violations of his supervised release, despite having
previously

received

Similarly,

in

emphasized

leniency

Hardison’s

that,

after

from

the

revocation

receiving

court.
hearing,

leniency

from

See

id.

the

court

the

court,

Hardison abused the court’s trust in an egregious fashion.

The

court also observed and emphasized that Hardison had committed
multiple

violations

of

his

conditions

of

supervised

release,

including selling cocaine and unlawfully possessing a firearm.
By
several

its

revocation

pertinent

sentence.

order,

§ 3553(a)

the

factors

district
for

court

imposing

relied
the

on

maximum

Emphasizing the § 3553(a)(2)(B) factor of deterrence,

the court observed that a lengthy sentence was required because
“neither

[Hardison’s]

prior

conviction

and

sentence

of

204

months’ imprisonment nor this Court’s leniency in permitting him
to continue on supervision . . . were sufficient to cause him to
refrain from engaging in the sale of illegal narcotics.”
15

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States v. Hardison, No. 5:95-cr-00083, at 2 (E.D.N.C. May 30,
2014),

No.

402.

§ 3553(a)(2)(C),

that

protect

ECF

the

public

The
the

from

court

maximum
further

also

explained,

sentence
crimes

by

was

invoking

required

Hardison.

to
Id.

Finally, the court balanced the statutory considerations against
Hardison’s arguments in mitigation, stating:
The Court has further considered the arguments by
defendant’s counsel presented in mitigation, and finds
they do not outweigh the need for adequate deterrence
and protection of the public.
Indeed, counsel’s
argument that defendant has been on supervision for
four years with only one earlier violation is strongly
undercut by the testimony of the investigating officer
that this defendant was a known drug dealer in a high
crime area.
Id.

In sum, the court had multiple reasons for its imposition

of the statutory maximum sentence, and explicitly considered and
rejected all arguments in mitigation.

The court’s explanation

was more than sufficient and therefore substantively reasonable.
Accordingly, Hardison’s substantive unreasonableness contention
fails on the first prong of plain error review, in that the
revocation sentence was not substantively unreasonable and thus
not in error.

IV.
Pursuant

to

the

foregoing,

we

affirm

the

revocation

sentence of the district court.
AFFIRMED
16