US v. Roland Ware

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:07-cr-00176-D-4 Copies to all parties and the district court/agency. [999750733].. [14-4797]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 14-4797

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ROLAND WARE, a/k/a Finesse, a/k/a Fetti,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Dever III,
Chief District Judge. (5:07-cr-00176-D-4)

Submitted:

January 28, 2016

Before MOTZ and
Circuit Judge.

KING,

Circuit

Decided:

Judges,

and

February 8, 2016

HAMILTON,

Senior

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Eric J. Brignac,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Thomas G. Walker, United States Attorney, Jennifer P.
May-Parker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ronald Ware appeals from the revocation of his supervised
release and the imposition of a prison term of 36 months.
appeal,

Ware

argues

that

his

sentence

exceeds

the

On

statutory

maximum allowed for a revocation of supervised release, given
the 12 months previously served on his prior revocation.

He

contends that his plea agreement limited the aggregate total
amount

of

time

he

could

release to three years.

serve

upon

revocation

of

supervised

In the alternative, he argues that his

plea agreement was ambiguous as to whether the three-year limit
was an aggregate limit or a per-violation limit.

We affirm.

At the outset, we note that the parties disagree as to what
standard of review to employ.

The Government contends that Ware

did not raise this claim of error below, and thus it should be
reviewed

for

plain

error.

Ware

counters

that

his

counsel,

although agreeing with the policy statement range announced by
the

district

maximum.

court,

objected

to

the

three-year

statutory

Our review of the transcript confirms that defense

counsel objected to the statutory maximum.

However, he did not

articulate that his objection was based on violation of the plea
agreement

by

use

of

a

per-violation

statutory maximum sentence.
because

Ware’s

issue

does

basis

to

calculate

the

We need not resolve this dispute
not

survive

2

de

novo

review.

See

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United States v. Under Seal, 709 F.3d 257, 261 (4th Cir. 2013)
(questions of statutory interpretation are reviewed de novo).
Ware’s

plea

agreement,

entered

into

in

November

2007,

specifies “Maximum term of supervised release: 5 years [and]
Maximum

term

release:

3

of

imprisonment

years.”

Ware

upon

revocation

therefore

argues

of

that

supervised
the

court’s

three-year second revocation sentence altered the terms of his
plea agreement.
A district court may revoke a term of supervised release
and

impose

a

term

preponderance

of

condition

supervised

(2012).

of

the

of

imprisonment

evidence

that

release.”

after
the
18

“find[ing]

U.S.C.

§

a

violated

defendant

by

a

3583(e)(3)

“[A] defendant whose term is revoked . . . may not be

required to serve on any such revocation more than . . . 3 years
in prison if such offense is a class B felony . . . .”
Under

a

prior

version

of

this

statute,

Id.

this

court

“assume[d] without deciding[] that § 3583(e)(3)’s maximum prison
term

limits

the

total

prison

time

that

may

be

imposed

for

multiple violations of supervised release.”

United States v.

Hager, 288 F.3d 136, 137 (4th Cir. 2002).

Section 3583 was

amended

in

2003,

however,

by

the

Prosecutorial

Remedies

and

Other Tools to End the Exploitation of Children Today Act of
2003 (“PROTECT Act” or “Act”).

The Act added the phrase “on any

such revocation” to § 3583(e)(3).
3

Every Circuit to address the

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amended version of § 3583(e)(3) has concluded that “prior time
served

for

violations

of

supervised

release

is

not

credited

towards and so does not limit the statutory maximum that a court
may

impose

for

subsequent

violations

of

supervised

release.”

United States v. Perry, 743 F.3d 238, 241-42 (7th Cir. 2014)
(collecting cases); see also United States v. Tapia-Escalera,
356 F.3d 181, 188 (1st Cir. 2004) (noting that, through the
PROTECT

Act,

“Congress

has

altered

the

statute

to

adopt

the

government’s position” that the terms of imprisonment do not
aggregate (emphasis omitted)).

We agree.

Ware’s plea agreement was executed well after the date of
enactment of the revised § 3583(e).
after

at

least

two

per-violation maximum.

Circuit

Court

Further, he entered into it
decisions

upholding

the

See Tapia-Escalera, 356 F.3d at 188;

United States v. Williams, 425 F.3d 987, 989 (11th Cir. 2005),
abrogated on other grounds.

“Applying standard contract law, we

enforce a plea agreement’s plain language in its ordinary sense
and do not write the contracts of the parties retroactively, but
merely construe the terms of the contract the parties previously
signed.”

United States v. Jordan, 509 F.3d 191, 195 (4th Cir.

2007) (internal quotation marks and citations omitted).

The

terms of the plea agreement were clear and Ware does not contend
that he would not have entered into it had he understood that

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the revocation sentence statutory maximum was per-violation and
not an aggregate of revocation sentences.
Ware’s
ambiguous

alternative
is

argument

likewise

that

his

unavailing.

plea

agreement

Nothing

in

the

was

record

indicates that his plea was unknowing or involuntary due to a
misunderstanding about the statutory maximum sentence applicable
on supervised release revocation.
revised

four

agreement.

years

prior

to

The statutory maximum was

Ware

entering

into

the

plea

At the Fed. R. Crim. P. 11 hearing, Ware confirmed

that he understood the terms of his plea agreement.
ordinarily

considers

a

waiver

knowing,

“[T]he law

intelligent,

and

sufficiently aware if the defendant fully understands the nature
of the right and how it would likely apply in general in the
circumstances
specific

—

even

detailed

though

the

consequences

defendant
of

may

invoking

not
it.”

know

the

United

States v. Ruiz, 536 U.S. 622, 629 (2002). The plea agreement
constituted

the

entire

understanding

between

the

parties

and

Ware confirmed at the Rule 11 hearing that there were no other
agreements between the parties.

Under these circumstances, we

determine that there was no ambiguity in the plea agreement such
that an interpretation that goes against the plain statutory
language and case law should be applied.
Thus,

we

conclude

that

the

district

court

properly

determined that Ware’s prior revocation sentence did not limit
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the statutory maximum available and, therefore, Ware’s sentence
does not exceed the statutory maximum or violate the terms of
his plea agreement.
facts

and

materials

legal
before

We dispense with oral argument because the

contentions

are

adequately

this

and

argument

court

presented

would

not

in

the

aid

the

decisional process.
AFFIRMED

6