US v. Antonio Taste
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00280-WO-1 Copies to all parties and the district court/agency. [999539650].. [14-4649]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4649
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO TASTE,
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. (1:07-cr-00280-WO-1)
Submitted:
January 29, 2015
Decided:
March 4, 2015
Before NIEMEYER, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Steven A. Feldman, FELDMAN and FELDMAN, Uniondale, New York, for
Appellant.
Ripley Rand, United States Attorney, Michael F.
Joseph, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Antonio Taste pled guilty to possession of a firearm
by
a
convicted
sentenced
to
felon,
180
18
months’
U.S.C.
§ 922(g)(1)
imprisonment,
the
(2012),
mandatory
and
was
minimum
penalty under the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e) (2012).
On appeal, counsel submitted a brief pursuant
to Anders v. California, 386 U.S. 738 (1967), stating that there
were no meritorious issues for appeal, but suggesting that this
court consider whether the district court erred in designating
Taste an armed career criminal.
Applying United States v. Harp,
406 F.3d 242, 246 (4th Cir. 2005), this court rejected counsel’s
argument and affirmed the judgment.
United States v. Taste, 303
F. App’x 149 (4th Cir. 2008) (No. 08-4388).
In July 2012, Taste filed a 28 U.S.C. § 2255 (2012)
motion,
arguing
entering
that
convictions
his
four
North
could
no
longer
Carolina
be
breaking
considered
and
violent
felonies for purposes of the ACCA in light of our decision in
United
States
banc).
The
v.
Simmons,
Government
649
F.3d
responded
237
that,
(4th
while
Cir.
2011)
Taste
may
(en
be
entitled to resentencing, he had numerous other violent felonies
and/or
serious
drug
offenses
that
would
still
render
him
an
armed career criminal subject to a mandatory minimum 180-month
sentence.
Although the Government posited that the enhanced
ACCA sentence was still appropriate, relying in part on Taste’s
2
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three Massachusetts “larceny from the person” convictions, it
agreed to resentencing in light of Simmons. 1
Accordingly, the
district court, accepting the magistrate judge’s recommendation,
granted the § 2255 motion as to Taste’s Simmons claim, vacated
the judgment, and ordered resentencing.
At
concluded
resentencing
that
Taste’s
in
July
prior
2014,
the
Massachusetts
district
court
convictions
for
larceny from the person were violent felonies for purposes of
the ACCA, and again applied the enhanced sentence of 180 months’
imprisonment.
The district court imposed the same conditions of
supervised release as it did at the first sentencing, including
the following special condition:
The defendant shall submit to substance abuse testing,
at any time, as directed by the probation officer.
The defendant shall cooperatively participate in a
substance abuse treatment program, which may include
drug
testing
and
inpatient
or
residential
treatment. . . .
On
appeal,
Taste
first
alleges
that
the
district
court’s special condition that he “submit to substance abuse
testing
at
any
time
as
directed
by
the
probation
officer”
constitutes an improper delegation of judicial function to the
probation officer.
Specifically, he maintains that the district
1
As part of this concession, the Government further
affirmatively waived any statute of limitations defense that
might otherwise apply.
3
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court erred in authorizing the probation department to conduct
substance
abuse
testing
at
any
time
during
his
term
of
supervision, without issuing a schedule or setting a limitation
on the number of tests per year.
Taste concedes that this claim
is reviewed for plain error because he did not object below. 2
To establish plain error, Taste must demonstrate that
the district court erred, the error was plain, and the error
affected his substantial rights.
133 S. Ct. 1121, 1126 (2013).
Henderson v. United States,
If these requirements are met,
the court will exercise its discretion to correct the error only
if
it
“seriously
affects
the
fairness,
reputation of judicial proceedings.”
integrity
or
public
Id. at 1126-27 (internal
quotation marks and alterations omitted).
We conclude that the district court did not err in
imposing the special condition.
See United States v. Carpenter,
702 F.3d 882, 884-885 (6th Cir. 2012) (holding that when “the
2
The Government argues that Taste’s challenge to the
special condition, which was also imposed in the original
judgment, is barred because he could have raised it in his
initial appeal but failed to do so. Under the circumstances of
this case, where a resentencing hearing was held, we conclude
otherwise.
See 28 U.S.C. § 2255(b) (2012) (“[T]he court shall
vacate and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or correct the
sentence as may appear appropriate.”); see also United States v.
Haynes, 764 F.3d 1304, 1310 (11th Cir. 2014) (“[A] resentencing
court
has
the
discretion
to
limit
resentencing
to
the
‘appropriate’ relief granted in the order to vacate, set aside,
or correct the prisoner’s sentence.”).
4
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district court imposed drug testing in connection with a special
condition of substance abuse program participation . . . [it]
was . . . not required to specify the number of drug tests [a
defendant] must undergo as a part of the treatment program.”).
Even
assuming
error,
any
improper
Taste’s substantial rights.
458
F.3d
994,
996
delegation
did
not
affect
See United States v. Maciel-Vaquez,
(9th
Cir.
2006)
(holding
any
improper
delegation did not rise to level of plain error); United States
v.
Padilla,
415
F.3d
211,
219-20
(1st
Cir.
2005)
(holding
district court’s erroneous delegation of authority to probation
officer
to
administered
determine
was
not
maximum
number
structural
error
of
drug
and
tests
therefore
to
be
did
not
erred
in
constitute plain error).
Next,
Taste
argues
the
district
court
designating him an armed career criminal based in part on his
Massachusetts
convictions
for
larceny
from
the
person.
We
review de novo a district court’s determination of whether prior
offenses qualify as violent felonies for purposes of the ACCA.
United States v. Hemingway, 734 F.3d 323, 331 (4th Cir. 2013).
In considering whether the district court properly designated
Taste an armed career criminal, we review the sentencing court’s
legal conclusions de novo and its factual findings for clear
error.
United States v. McDowell, 745 F.3d 115, 120 (4th Cir.
5
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2014), cert. denied, ___ S. Ct. ___, 2015 WL 132957 (Jan. 12,
2015).
A
defendant
is
an
armed
career
criminal
when
he
violates 18 U.S.C. § 922(g)(1) and has three prior convictions
for
violent
felonies
§ 924(e)(1).
or
Because
serious
a
drug
Massachusetts
offenses.
conviction
18
for
U.S.C.
larceny
from the person constitutes a violent felony for purposes of the
ACCA, we reject this argument.
659
F.3d
117,
conviction
118-20
for
(1st
larceny
See United States v. Rodriguez,
Cir.
from
2011)
the
(holding
person
Massachusetts
constitutes
violent
felony under the residual clause of the ACCA); United States v.
DeJesus,
984
F.2d
21,
25
(1st
Cir.
1993)
(larceny
from
the
person as defined under Massachusetts law constitutes a crime of
violence); see also United States v. Jarmon, 596 F.3d 228, 230–
33 (4th Cir. 2010) (holding that North Carolina crime of larceny
from
the
person
was
a
crime
of
violence
under
the
residual
clause of the career offender guideline).
Accordingly, we affirm the district court’s judgment.
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
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