US v. Anthony Wynn
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 2:02-cr-00178-RAJ-7. [999586767]. [14-4599]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4599
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY WYNN, a/k/a Twin,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:02-cr-00178-RAJ-7)
Argued:
March 25, 2015
Decided:
May 20, 2015
Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Shedd and Judge Duncan joined.
ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.
V. Kathleen
Dougherty, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.
ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Richard J. Colgan, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.
Dana J. Boente, United
States Attorney, Alexandria, Virginia, Darryl J. Mitchell,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
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BARBARA MILANO KEENAN, Circuit Judge:
In
erred
this
in
appeal,
determining,
we
consider
based
on
whether
the
the
district
defendant’s
status
court
as
a
recidivist drug offender, that certain drug offenses committed
during his supervised release were Grade B violations under the
United States Sentencing Commission’s advisory policy statements
for violations of probation and supervised release (the ”policy
statements”). 1
The defendant argues that his drug offenses while
on supervised release constituted lesser Grade C violations, and
that
the
enhancement
district
for
court
recidivist
improperly
conduct
applied
in
a
reaching
statutory
a
contrary
conclusion.
We hold that the district court did not err in considering
the defendant’s prior offenses when determining the grade of his
supervised
release
violations
under
the
policy
statements.
Accordingly, we affirm the district court’s judgment.
1
As we have previously explained, “[r]ather than issue
guidelines to govern sentences for [violations of supervised
release and probation], the United States Sentencing Commission
chose instead ‘to promulgate policy statements only’ to give
courts ‘greater flexibility’ in devising revocation sentences.”
United States v. Crudup, 461 F.3d 433, 435 (4th Cir. 2006)
(quoting U.S.S.G. Ch.7, pt.A, introductory cmts. 1, 3(a)).
2
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I.
In
2003,
Anthony
Wynn
was
convicted
of
conspiracy
to
distribute and possession with intent to distribute heroin and
cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1).
The
district
court
imprisonment,
release.
sentenced
followed
Among
by
other
a
Wynn
to
a
five-year
things,
the
150-month
period
of
term
conditions
of
supervised
of
Wynn’s
supervised release required that Wynn refrain from unlawful use
of controlled substances and submit to drug testing as directed
by his probation officer.
In
May
alleging
after
release,
supervised
2014,
his
that
supervision.
Wynn
had
Wynn
began
probation
serving
violated
officer
the
his
filed
period
a
conditions
of
petition
of
his
The amended petition contained numerous alleged
violations, including that Wynn had possessed marijuana on six
separate occasions between February 2014 and June 2014. 2
During
a
supervised
release
revocation
hearing
in
the
district court, Wynn admitted that he possessed marijuana on the
several occasions alleged by the probation officer.
2
Based on
The petition and its addenda also included allegations
that Wynn drove a vehicle without a license, operated an
uninsured vehicle, and operated a vehicle with tinted windows.
The probation officer further alleged in the petition that Wynn
failed to submit monthly supervision reports, failed to
participate satisfactorily in substance abuse treatment, and
failed to provide timely notification to the probation officer
of an arrest.
3
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Wynn’s
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admissions
and
the
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probation
officer’s
testimony,
the
district court found that Wynn had violated the terms of his
supervision and, accordingly, revoked Wynn’s supervised release.
The
probation
officer
calculated
a
term
of
imprisonment
under the advisory policy statements of between twenty-one and
twenty-seven
months.
This
calculation
was
based
on
the
probation officer’s conclusion that, due to Wynn’s prior drug
convictions,
his
marijuana
offenses
were
Grade
B
violations
because each offense was punishable by imprisonment of more than
one year under a recidivist enhancement. 3
In the Presentence
Investigation Report (PSR), the probation officer noted that in
addition to the 2003 federal drug convictions for which Wynn was
sentenced in part to the five-year period of supervised release,
Wynn also had been convicted in various state courts of several
drug
offenses,
with
intent
including
to
possession
distribute
heroin
of
heroin
in
2002,
and
possession
possession
of
marijuana in 2000, possession of heroin in 1999, and possession
of cocaine and marijuana in 1994.
3
The district court also found that Wynn had committed the
other alleged violations of the conditions of his supervision.
Under the policy statements, however, where there are multiple
violations of the conditions of supervision, “the grade of the
violation is determined by the violation having the most serious
grade.”
U.S.S.G. § 7B1.1(b).
In this case, it is undisputed
that the Grade B violations involving possession of marijuana
carried the most serious grade.
4
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Wynn disputed the probation officer’s conclusion that the
marijuana offenses during his supervised release were Grade B
violations.
He
argued
that
the
six
incidents
of
possessing
marijuana were Grade C violations, because the “basic penalty”
under federal law for simple possession of marijuana does not
exceed a one-year term of imprisonment.
Wynn asserted that in
determining the grade of his violations at a revocation hearing,
the district court was prohibited by the policy statements from
considering his prior convictions, which only were relevant to
determining his term of imprisonment at his original sentencing
hearing.
Wynn argued that absent any consideration of his prior
record, his violations were merely Grade C violations, which
would
yield
an
advisory
penalty
range
under
the
policy
statements of between eight and fourteen months’ imprisonment.
The district court rejected Wynn’s argument, holding that
his recidivism directly affected the grade of his supervised
release violations, and that, therefore, his acts of possession
of
marijuana
constituted
Grade
B
offenses.
The
court
accordingly adopted the probation officer’s recommended penalty
range and sentenced Wynn to serve a term of twenty-four months’
imprisonment.
Wynn timely filed the present appeal.
5
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II.
Our review on appeal initially is confined to the question
whether the revocation sentence is unreasonable; if the sentence
is not unreasonable, the sentence will be affirmed. 4
States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006).
if
we
conclude
that
the
revocation
sentence
is
United
However,
unreasonable
either procedurally or substantively, we further must consider
whether the sentence is plainly unreasonable.
In
the
present
case,
Wynn
challenges
Id.
only
the
district
court’s procedural calculation of the advisory sentencing range.
Because
the
district
dispute,
the
sole
properly
applied
a
court’s
question
factual
before
statutory
us
findings
is
enhancement
are
whether
in
not
the
in
court
calculating
the
applicable policy statements range, a question of law that we
review de novo.
Cir. 2014).
court
United States v. Dowell, 771 F.3d 162, 170 (4th
Thus, we turn to consider whether the district
correctly
determined
that
Wynn’s
conduct
of
possessing
marijuana constituted Grade B, rather than Grade C, violations
under the policy statements.
4
Our review of supervised release revocation sentences
“follow[s]
generally
the
procedural
and
substantive
considerations that we employ in our review of original
sentences, . . . with some necessary modifications to take into
account the unique nature of supervised release revocation
sentences.” Crudup, 461 F.3d at 438-39.
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7
of
the
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Guidelines
contains
three
grades
of
supervised release violations, only two of which are at issue in
this case.
conduct
See U.S.S.G. § 7B1.1(a).
presents
a
Grade
B
In general, a defendant’s
violation
if
it
is
conduct
constituting a “federal, state, or local offense punishable by a
term of imprisonment exceeding one year.” 5
In
contrast,
a
Grade
C
violation
is
Id. § 7B1.1(a)(2).
defined
as
conduct
constituting: (1) “a federal, state, or local offense punishable
by
a
term
violation
of
of
imprisonment
any
other
of
one
year
condition
or
of
less;”
or
(2)
supervision.”
“a
Id.
§ 7B1.1(a)(3).
Under
federal
law,
although
possession
of
a
controlled
substance by a non-recidivist defendant subjects that defendant
to
a
term
recidivist
of
imprisonment
defendant
is
of
not
subject
more
to
a
than
one
greater
year,
term
5
a
of
However, such conduct rises to the level of a Grade A
violation if it constitutes
(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.
U.S.S.G. § 7B1.1(a)(1).
7
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imprisonment.
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21 U.S.C. § 844(a).
Section 844(a) provides, in
relevant part, that a defendant
may be sentenced to a term of imprisonment of not more
than 1 year, . . . , except that if he commits such
offense after . . . two or more prior convictions
under this subchapter or subchapter II of this
chapter, or two or more prior convictions for any
drug, narcotic, or chemical offense chargeable under
the law of any State, or a combination of two or more
such offenses have become final, he shall be sentenced
to a term of imprisonment for not less than 90 days
but not more than 3 years, . . . .
Id.
Wynn contends that under the Supreme Court’s decision in
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the district
court was prohibited from finding that the drug offenses that he
committed during supervised release were “punishable” under an
enhanced statutory penalty.
According to Wynn, the government’s
failure to file a notice under 21 U.S.C. § 851(a)(1), signifying
an intent to rely on Wynn’s prior convictions at his revocation
sentencing, precluded any consideration of those convictions in
computing his advisory sentencing range.
We
find
no
merit
in
this
argument.
Section
851(a)(1)
states, in relevant part, that
[n]o person who stands convicted of an offense under
this part shall be sentenced to increased punishment
by reason of one or more prior convictions, unless
before trial, or before entry of a plea of guilty, the
United States attorney files an information with the
court (and serves a copy of such information on the
person or counsel for the person) stating in writing
the previous convictions to be relied upon.
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21 U.S.C. § 851(a)(1).
only
to
the
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By its plain terms, this statute applies
sentencing
of
criminal
defendants
who
have
been
convicted of a crime following the “entry of a plea of guilty”
or a “trial.”
Id.
The statute does not contain any reference
to supervised release revocation proceedings.
As the Supreme Court observed in Carachuri-Rosendo, Section
851 requires that during a criminal prosecution the government
“charge a defendant as a recidivist in the criminal information”
before seeking a recidivist enhancement.
Court
accordingly
held
that
the
560 U.S. at 578.
availability
of
an
The
enhanced
sentence at the time of a prior conviction may not be considered
as
part
of
a
person’s
criminal
history
in
an
immigration
proceeding, when the government had not sought under Section 851
to pursue the enhancement at the original sentencing for the
criminal offense.
Id. at 578-80.
Thus, the import of the
Court’s holding was that the government was not permitted to
treat a criminal offense in an immigration proceeding as being
more serious than the offense was treated at the time of the
actual criminal prosecution.
Contrary to Wynn’s position, nothing in the decision in
Carachuri-Rosendo suggests that Section 851 plays any role in a
supervised release revocation hearing, or prevents a district
court
from
considering
the
fact
convictions during such a proceeding.
9
of
a
defendant’s
prior
Indeed, the very purpose
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of a supervised release revocation hearing is to determine the
gravity of the breach of trust committed by the defendant in the
context of the “conditional liberty” he was granted following
his conviction of the underlying offenses.
See United States v.
Ward, 770 F.3d 1090, 1098 (4th Cir. 2014); Crudup, 461 F.3d at
437-38.
breach
Thus, a determination of the gravity of a defendant’s
of
Section
trust,
844(a),
defendant’s
as
reflected
necessarily
criminal
by
the
requires
history
sentencing
mandate
consideration
unencumbered
by
of
a
of
the
notice
requirement applicable to an original criminal prosecution.
Wynn
next
argues,
however,
that
the
district
court
was
constrained to consider only the “basic” penalty imposed by the
statute
for
simple
possession
of
marijuana,
rather
than
the
penalty imposed by the statute for such acts committed by a
recidivist defendant.
In support of his position, Wynn relies
on Application Note 1 to U.S.S.G. § 7B1.1, which states that
[u]nder 18 U.S.C. §§ 3563(a)(1) and 3583(d), a
mandatory
condition
of
probation
and
supervised
release is that the defendant not commit another
federal, state, or local crime.
A violation of this
condition may be charged whether or not the defendant
has been the subject of a separate federal, state, or
local prosecution for such conduct.
The grade of
violation does not depend upon the conduct that is the
subject of criminal charges or of which the defendant
is convicted in a criminal proceeding.
Rather, the
grade of the violation is to be based on the
defendant’s actual conduct.
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U.S.S.G. § 7B1.1 cmt. n. 1.
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Wynn focuses exclusively on the
final two sentences of the commentary, asserting that “actual
conduct” describes only conduct committed on supervised release
completely divorced from the defendant’s earlier conduct.
Id.
We disagree with Wynn’s argument.
Viewed in context, the commentary that Wynn cites fails to
support
his
position.
Application
Note
1
instructs
that
in
grading a violation of supervised release, a district court may
consider not only conduct for which a defendant is prosecuted in
a criminal case, but all of a defendant’s conduct, “whether or
not the defendant has been the subject of . . . prosecution for
such conduct.”
1150,
1155
Id.; see United States v. Trotter, 270 F.3d
(7th
Cir.
2001)
(“Application
Note
1
tells
the
district judge to consider what the person on supervised release
did,
rather
(emphases
than
in
what
crimes
original)).
he
Rather
has
been
than
charged
limiting
a
with.”
district
court’s ability to consider a defendant’s conduct, Application
Note 1 suggests that district courts consider all conduct that
affects
the
violation.
real-offense
maximum
penalties
for
a
supervised
release
See Trotter, 270 F.3d at 1155 (“A judge engaged in
sentencing
does
not
ignore
prior
offenses
that
affect the maximum punishment; recidivist enhancements are part
of real-offense sentencing.”).
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Accordingly, we hold that the district court did not err in
concluding
that
Wynn’s
prior
drug
convictions
increased
the
extent to which his marijuana offenses during supervised release
were
“punishable”
court
correctly
under
Section 844(a).
determined
that
Thus,
Wynn’s
the
multiple
district
acts
of
possessing marijuana during his supervised release constituted
Grade
B
violations
under
the
Guidelines’
Chapter
7
advisory
policy statements.
III.
For
these
reasons,
Wynn’s
revocation
sentence
is
not
unreasonable, and we affirm the district court’s judgment.
AFFIRMED
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