US v. Michael Wheeler

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:04-cr-00066-RLV-CH-1. Copies to all parties and the district court/agency. [1000050282]. [16-4273]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-4273

UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL GRAYLEN WHEELER,
Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina,
at Statesville. Richard L. Voorhees, District Judge. (5:04-cr-00066-RLV-CH-1)

Submitted: March 20, 2017

Decided: March 28, 2017

Before MOTZ, Circuit Judge, and HAMILTON and DAVIS, Senior Circuit Judges.

Affirmed by unpublished per curiam opinion.

R. Clarke Speaks, SPEAKS LAW FIRM, Wilmington, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
The district court revoked Michael Graylen Wheeler’s term of supervised release
after concluding that he had committed new crimes, associated with a convicted felon,
possessed and used illegal drugs, and failed to participate in a mandatory drug treatment
program. The district court sentenced Wheeler to 60 months’ imprisonment, and he now
appeals. Appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), stating that there are no meritorious grounds for appeal but questioning
whether the district court abused its discretion in finding that the Government had
adequately demonstrated that Wheeler trafficked cocaine. Wheeler has filed a pro se
supplemental brief, arguing that the sentence imposed is unreasonable. We affirm.
With respect to counsel’s arguments, the district court need only find a supervised
release violation by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2012); see
United States v. Padgett, 788 F.3d 370, 374 (4th Cir.), cert. denied, 136 S. Ct. 494
(2015).

“We review a district court’s ultimate decision to revoke a defendant’s

supervised release for abuse of discretion.” Padgett, 788 F.3d at 373. However, “we
review a district court’s factual findings underlying a revocation for clear error.” Id.; see
Glossip v. Gross, 135 S. Ct. 2726, 2786 (2015) (defining clear error).
The Government presented two witnesses, both of whom had several years of
experience investigating narcotics and were trained in identifying cocaine, who testified
that the substance Wheeler sold was cocaine. One of the officers conducted a field test
on the substance, which revealed the presence of cocaine. Regardless of whether that test
was as reliable as laboratory testing by a certified forensic chemist, the result supports the
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opinions offered by the Government witnesses. We therefore conclude that the district
court did not clearly err in finding the substance Wheeler sold was cocaine. We also
conclude that the Government established by a preponderance of the evidence that
Wheeler had committed new criminal conduct and that the court did not abuse its
discretion in revoking Wheeler’s supervised release.
Turning to Wheeler’s pro se argument, “[w]e will not disturb a district court’s
revocation sentence unless it falls outside the statutory maximum or is otherwise plainly
unreasonable.” Padgett, 788 F.3d at 373 (internal quotation marks omitted). “Only if a
revocation sentence is unreasonable must we assess whether it is plainly so.” Id. “In
determining whether a revocation sentence is unreasonable, we strike a more deferential
appellate posture than we do when reviewing original sentences.” Id. (internal quotation
marks omitted). “Nonetheless, the same procedural and substantive considerations that
guide our review of original sentences inform our review of revocation sentences as
well.” Id. (internal brackets and quotation marks omitted).
Here, the district court committed no procedural or substantive error.

The

Government presented evidence that the cocaine sold by Wheeler weighed 29 grams. *
Sale of more than 28 grams, but less than 200 grams, of cocaine in North Carolina is a
felony offense punishable by a minimum term of 35 months’ imprisonment. N.C. Gen.
*

Although Wheeler notes that, absent scientifically acceptable methods of testing
the cocaine, it is impossible to determine the actual quantity of cocaine that was sold, the
actual quantity is irrelevant under North Carolina law. See State v. Reid, 566 S.E.2d 186,
191 (N.C. Ct. App. 2002) (“It is well established that the total quantity of the mixture
containing cocaine is the relevant weight to be used in determining a violation under
[North Carolina drug laws]”).
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Stat. § 90-95(h)(3)(a) (2015). Such a crime constitutes a Grade A violation of supervised
release. U.S. Sentencing Guidelines Manual § 7B1.1(a)(1), p.s. (2015). With a criminal
history category of VI, the district court properly calculated Wheeler’s policy statement
range as 51 to 60 months’ imprisonment. Furthermore, the district court adequately
explained the chosen sentence.

Wheeler has not rebutted the presumption of

reasonableness afforded to the within-policy statement range sentence imposed by the
district court. See United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).
In accordance with Anders, we have reviewed the entire record in this case and
have found no meritorious grounds for appeal. We therefore affirm the district court’s
revocation judgment. This court requires that counsel inform Wheeler, in writing, of the
right to petition the Supreme Court of the United States for further review. If Wheeler
requests that a petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on Wheeler.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED

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