US v. Dale Versher

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:10-cr-00098-AWA-TEM-1 Copies to all parties and the district court/agency. [999699299].. [15-4104]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4104

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DALE PATRICK VERSHER,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:10-cr-00098-AWA-TEM-1)

Submitted:

November 10, 2015

Before WILKINSON and
Senior Circuit Judge.

KEENAN,

Decided:

Circuit

November 16, 2015

Judges,

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Rodolfo Cejas, II,
Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant.
Dana J. Boente, United
States Attorney, Lisa R. McKeel, Assistant United States
Attorney, Newport News, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Dale
revoking

Patrick

Versher

supervised

appeals

release

and

the

district

imposing

a

court’s

24-month

order

term

of

imprisonment to be followed by 15 years’ supervised release.
Versher

contends

release

he

was

that

one

convicted

of

of

the

conditions

violating

was

of

supervised

unconstitutionally

vague and that the court plainly erred in imposing a 15-year
term of supervised release.

For the reasons that follow, we

affirm.
In

2010,

Versher,

a

convicted

rapist,

pled

guilty

to

failing to register as a sex offender as required by the Sex
Offender

Registration

and

Notification

U.S.C. § 2250(a) (2012).

Act

(“SORNA”),

see

18

The district court sentenced Versher

to 36 months’ imprisonment, to be followed by a 15-year term of
supervised

release

for

which

conditions of supervision.

the

court

imposed

several

Relevant to this appeal, Standard

Condition 3 required Versher to “answer truthfully all inquiries
by

the

probation

officer

probation officer.”

and

follow

the

instructions

of

the

(J.A. 40). 1

Versher was released from custody and began serving his
term

of

supervision

in

March

2013.

1

Later

that

year,

the

“J.A.” refers to the joint appendix filed by the parties
on appeal.

2

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district court revoked Versher’s supervised release, because he
violated

various

conditions

of

supervision.

The

court

sentenced Versher to 60 days’ imprisonment, to be followed by 15
years’ supervised release.
Versher’s new term of supervision began on January 3, 2014.
The district court once again revoked Versher’s supervision on
February

5,

2015,

finding

that

Versher

violated

several

conditions of supervision, including Standard Condition 3.
court

found

that

Versher

violated

Standard

Condition

The
3

by

failing to comply with the probation officer’s oral instructions
to notify him about new romantic relationships.

Versher argues

that this instruction was impermissibly vague, because it was
not

clear

what

constituted

a

“romantic

relationship”

and

therefore the condition violated his due process rights. 2
We
judgment

review

for

revoking

imprisonment.

abuse

of

supervised

discretion
release

and

a

district

imposing

a

court’s
term

of

United States v. Padgett, 788 F.3d 370, 373 (4th

Cir.), cert. denied, ___ S. Ct. ___, 2015 WL 5937870 (U.S. Nov.
2

Versher does not dispute the district court’s findings
that he violated other conditions of supervised release, or that
his supervised release could be revoked solely on the basis of
those other violations.
However, he argues that he was
prejudiced by the district court’s finding that he violated
Standard Condition 3, because the district court’s decision to
sentence him above the Policy Statement range to the statutory
maximum term of imprisonment was based in part on this
violation.

3

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9, 2015) (No. 15-6499).
process claims.

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We review de novo constitutional due

United States v. Legree, 205 F.3d 724, 729 (4th

Cir. 2000).
A statute violates due process of law if it “either forbids
or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and
differ as to its application.”

Connally v. Gen. Constr. Co.,

269 U.S. 385, 391 (1926); United States v. Morison, 844 F.2d
1057,

1070

(4th

Cir.

1988).

The

conditions of supervised release.
274

F.3d

155,

166

(5th

Cir.

same

principles

apply

to

See United States v. Paul,
2001)

(“Restrictions

on

an

offender’s ability to interact with particular groups of people
. . . must provide ‘fair notice’ of the prohibited conduct.”);
United States v. Schave, 186 F.3d 839, 843 (7th Cir. 1999) (“A
condition of supervised release is unconstitutionally vague if
it would not afford a person of reasonable intelligence with
sufficient

notice

as

to

the

conduct

prohibited.”).

“[C]ategorical terms can provide adequate notice of prohibited
conduct

where

there

is

a

commonsense

activities the categories encompass.”

understanding

of

what

Paul, 274 F.3d at 167.

Our review of the record and the parties’ briefs convinces us
that the probation officer’s instructions were not impermissibly
vague and that the district court did not abuse its discretion

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in finding that Versher violated Standard Condition 3 by failing
to comply with those instructions.
Next,

Versher

challenges

the

15-year

release imposed by the district court.

term

of

supervised

Because Versher did not

object to his sentence before the district court, our review is
for plain error.

United States v. Webb, 738 F.3d 638, 640-41

(4th Cir. 2013).

To satisfy the plain error standard, Versher

must show (1) an error; (2) that is clear and obvious; (3) that
affects substantial rights; and (4) that “seriously affect[s]
the

fairness,

proceedings.”
Under

integrity

or

public

reputation

of

judicial

Id. (alteration in original).

U.S.

Sentencing

Guidelines

Manual

§ 5D1.2(b)(2)

(2010), a defendant who is convicted of a “sex offense” may
receive up to a lifetime term of supervised release.

In United

States v. Collins, 773 F.3d 25 (4th Cir. 2014), cert. denied,
135 S. Ct. 1868 (2015), this Court held, in accordance with a
recent clarifying amendment to the Guidelines, that “failing to
register as a sex offender under SORNA is not a ‘sex offense’
for purposes of the Guidelines.”
§ 5D1.2 cmt. n.1 (2014).
under

the

Guidelines

for

773 F.3d at 32; see USSG

Thus, the term of supervised release
a

defendant,

like

Versher,

who

is

convicted of failing to register is the statutory minimum of
five years.

Collins, 773 F.3d at 32; see USSG § 5D1.2 cmt. n.6.

Notably, although Collins clarified that the Guidelines term of
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supervised

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release

for

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defendants

convicted

of

failing

to

register is five years, the statutory range remains the same—
five years to life.

See 18 U.S.C. § 3583(k) (2012).

Versher argues that the district court plainly erred by
imposing a supervised release term in excess of the five years
advisory Guidelines range, and by failing to explain the reason
for the upward variance.

Even assuming that the district court

erred by failing to take into account the advisory Guidelines
range in imposing or explaining the upward variance, and that
the

error

is

clear

or

obvious,

Versher

cannot

show

a

“non-

speculative basis in the record to conclude that the district
court would have imposed a lower [supervised release term] . . .
but for the error.”

United States v. McLaurin, 764 F.3d 372,

388 (4th Cir. 2014) (internal quotation marks omitted), cert.
denied, 135 S. Ct. 1842 (2015).
Finally, Versher argues that the district court erred in
failing to subtract from his 15-year supervised release term the
terms

of

imprisonment

imposed

supervised release violations.
supervised

release

may

“not

for

his

past

and

present

The length of a new term of
exceed

the

term

of

supervised

release authorized by statute for the offense that resulted in
the

original

imprisonment
release.”

term
that

of
was

supervised
imposed

release,

upon

revocation

18 U.S.C. § 3583(h) (2012).
6

less

any
of

term

of

supervised

However, § 3583(h)’s

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subtraction rule does not apply where a statute authorizes a
maximum

supervised

release

term

of

life.

United

States

v.

Crowder, 738 F.3d 1103, 1104-05 (9th Cir. 2013); United States
v. Cassesse, 685 F.3d 186, 188-91 (2d Cir. 2012); United States
v. Rausch, 638 F.3d 1296, 1302-03 (10th Cir. 2011).
Accordingly,
dispense

with

contentions

are

we

oral

affirm

the

argument

adequately

district

because

presented

in

court’s

the
the

facts

order.

We

and

legal

materials

before

this Court and argument would not aid the decisional process.

AFFIRMED

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