US v. Brian Soles, No. 07-5091 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-5091 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BRIAN DEAN SOLES, Defendant Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. N. Carlton Tilley, Jr., Senior District Judge. (1:00-cr-00285-NCT-2) Submitted: June 4, 2009 Decided: July 2, 2009 Before MICHAEL, KING, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Richard L. Cannon, III, CANNON LAW OFFICES, PLLC, Greenville, North Carolina, for Appellant. Lisa Blue Boggs, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Brian agreement to Dean one Soles count of pled guilty bank pursuant robbery, in to a plea violation of 18 U.S.C. §§ 2, 2113(a) (1994 & Supp. IV 1999) and was sentenced in February 2001 to 32 months imprisonment followed by three years of supervised release. Soles began serving his term of supervised release on December 20, 2002. On December 19, 2005, the date on which Soles term of supervised release was set to expire, a petition was filed in the district court alleging a violation of supervised release. Soles had been arrested and taken into custody on state charges in North Carolina, and a federal detainer was lodged with state authorities. Soles, however, was not arrested by the United States Marshal s Service until August 20, 2007. the district sentenced him court to After a hearing on September 20, 2007, revoked twelve Soles months supervised imprisonment release and and twenty-four months supervised release. On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal. Counsel questions, however, whether Soles was entitled to a hearing under Fed. R. Crim. P. 32.1 promptly after his arrest in North Carolina and whether the twenty-one-month period of time between Soles December 2005 arrest and the September 2007 revocation hearing 2 violated Soles constitutional and statutory rights to a speedy trial. Counsel also questions whether the district court should have awarded Soles sentencing credit for 506 days he spent in state custody and questions whether revocation is plainly unreasonable. Soles sentence upon We affirm. We review for plain error counsel s Fed. R. Crim. P. 32.1 claim and the claims of constitutional and statutory speedy trial violations because Soles did not raise these issues in the district court. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). We discern no plain error. Fed. R. Crim. P. 32.1 applies only to those in custody solely for the States violation v. of Pardue, their 363 supervised F.3d 695, release. 697-98 See Cir. (8th United 2004). Further, the Rule is only triggered when the defendant is taken into federal release. was not custody for the violation of his supervised See Fed. R. Crim. P. 32.1(a)(1) & (b)(1)(A). taken into federal custody for a violation Soles of his supervised release until August 20, 2007, and we conclude that the month-long revocation period hearing was between Soles reasonable. federal See arrest Fed. R. and the Crim. P. 32.1(b)(2). Additionally, Soles had no Sixth Amendment right to a speedy trial because supervised release revocation proceedings are not stages of a criminal prosecution. 3 See United States v. Santana, 526 F.3d 1257, 1262 (9th Cir. 2008); United States v. House, 501 F.3d 928, 930-31 (8th Cir. 2007); United States v. Tippens, States v. full 39 F.3d Carlton, panoply of 88, 442 89 (5th F.3d rights Cir. 802, due 807 a 1994); (2d see Cir. defendant also 2006) in a United ( [T]he criminal prosecution does not apply to revocation hearings for parole, for probation, or for supervised release. (citations omitted)); United States v. Work, 409 F.3d 484, 491-92 (1st Cir. 2005) (Sixth Amendment s right to jury trial does not extend to supervised release revocation proceedings). Counsel s claim of Speedy Trial Act error is likewise without merit. The Speedy Trial Act provides, in relevant part, that any information or indictment charging an individual with the commission of an offense shall be filed within thirty days from the date on which such individual was arrested or served with a summons in connection with such charges. § 3161(b) (2006 & Supp. II 2008). Speedy Trial Act is to mandate 18 U.S.C. However, the goal of the an orderly and expeditious procedure for federal criminal prosecutions by fixing specific, mechanical time limits within which the various progressions in the prosecution must occur. United States v. Taylor, 240 F.3d 425, 427 (4th Cir. 2001) (internal quotation marks and citation omitted) (emphasis added). As 4 supervised release revocation proceedings are not stages in the criminal prosecution, the Speedy Trial Act has no applicability to them. Counsel should have also awarded questions Soles spent in state custody. whether sentencing the credit district for 506 court days he Under 18 U.S.C. § 3585(b) (2006), a defendant shall be given credit toward the service of a term of imprisonment for any time he has spent in official detention prior to the date the sentence commences. Section 3585(b), however, does not permit a district court to determine credit at sentencing. Rather, United States v. Wilson, 503 U.S. 329, 334 (1992). only Prisons, may the Attorney compute General, sentencing through credit. the Id. Bureau at of 334-35. Therefore, as counsel correctly concedes, the district court was without authority to order the Bureau of Prisons to give Soles credit for time he served in North Carolina. revocation hearing, the government s Moreover, at the attorney indicated that Soles may have received credit against his state sentence for the time he spent in state custody. If so, Soles was not entitled to have credit already applied to his state sentence counted a second time and applied to his federal sentence for violating the terms of his supervised release. See McClain v. Bureau of Prisons, 9 F.3d 503, 505 (6th Cir. 1993). Counsel questions whether revocation is plainly unreasonable. 5 Soles sentence upon We will affirm a sentence imposed after revocation of supervised release if it is within the applicable unreasonable. 439-40 (4th statutory and is not plainly See United States v. Crudup, 461 F.3d 433, 437, Cir. unreasonableness, substantive maximum 2006). We first follow[ing] considerations assess generally that we the employ in for procedural the sentence and our review of original sentences, . . . with some necessary modifications to take into account the unique nature of Id. at 438-39. revocation sentences. supervised release If we conclude that a sentence is not unreasonable, we will affirm the sentence. at 439. Only if a sentence is found Id. procedurally or substantively unreasonable will we decide whether the sentence is plainly unreasonable. A Id. supervised procedurally reasonable release if the revocation district sentence court is considered the Chapter Seven advisory policy statement range and the 18 U.S.C. § 3553(a) factors that it is permitted 461 reasonable F.3d if the at 440. Such district court consider in a See 18 U.S.C. § 3583(e); supervised release revocation case. Crudup, to a sentence stated a is substantively proper basis for concluding the defendant should receive the sentence imposed, up to the statutory maximum. is plainly unreasonable. unreasonable Crudup, 461 F.3d at 440. if it Id. at 439. 6 is clearly or A sentence obviously Soles 12-month prison sentence and 24-month period of supervised release do not exceed the applicable maximums set by statute, and the district court properly calculated the advisory policy statement range and sentenced Soles within that range. Because the district court did not explain why it imposed a twelve-month prison sentence, the sentence is at least arguably unreasonable. However, we easily conclude that Soles sentence is not plainly unreasonable because the sentence was within the recommended policy statement range and the record does not contain any basis upon which to conclude that the imposed sentence is clearly or obviously unreasonable. Finally, we cannot review counsel s claim that the district court erred by imposing the 36-month term of supervised release in Soles original sentencing, as we lack jurisdiction to examine the original sentencing proceeding in which the 36month term was imposed. 115, 117-18 objectionable, (4th he See United States v. Johnson, 138 F.3d Cir. 1998). should If have raised Soles this found claim the on term direct appeal. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. This court requires that counsel inform Soles, in writing, of the right to petition the Supreme Court of the 7 United States for further review. If Soles requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in representation. this and materials legal before for leave to withdraw from Counsel s motion must state that a copy thereof was served on Soles. facts court We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 8

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