US v. Robert Pratt, No. 09-4642 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4642 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ROBERT LEWIS PRATT, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Durham. James A. Beaty, Jr., Chief District Judge. (1:07-cr-00094-JAB-1) Submitted: June 17, 2010 Decided: August 20, 2010 Before MOTZ, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Brian M. Aus, Durham, North Carolina, for Appellant. Graham Tod Green, Assistant United States Attorney, Winston-Salem, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Robert Lewis Pratt appeals the district court s judgment revoking his supervised release and sentencing him to thirty months imprisonment. Pratt s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal, but questioning the reasonableness of Pratt s sentence on the ground that it was premised policy upon an statement Specifically, improper range counsel in calculation the federal questions of the Chapter sentencing whether the Seven guidelines. district court properly concluded that Pratt committed a Grade A violation of supervised release. Pratt was advised of his right to file a pro se supplemental brief, but he did not file one. We review a sentence imposed as a result of a supervised release violation to determine whether it is plainly unreasonable. Cir. 2006). United States v. Crudup, 461 F.3d 433, 437 (4th The first step in this analysis is a determination of whether the sentence is unreasonable. court, in determining reasonableness, Id. at 438. follows generally This the procedural and substantive considerations employed in reviewing original sentences. Id. However, [t]his initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guidelines sentences. United States v. Moulden, 478 F.3d 652, 2 656 (4th Cir. 2007) (quoting Crudup, 461 F.3d at 438). If a sentence imposed after a revocation is not unreasonable, we will not proceed to the second prong of the analysis whether the sentence was plainly unreasonable. Crudup, 461 F.3d at 439. Under U.S. Sentencing Guidelines Manual § 7B1.1(a)(1) (2007), a Grade A violation results from conduct constituting a federal, state, imprisonment or local exceeding substance offense. one offense year punishable that . . . USSG § 7B1.1(a)(1). by is a a term of controlled A controlled substance offense for purposes of § 7B1.1(a)(1) includes state or federal crimes prohibiting the distribution of a controlled substance, as well as the possession of a controlled substance with the intent to distribute, and that are punishable by more than a year in prison. USSG §§ 4B1.2(b), 7B1.1 cmt. (n.3). The commentary to USSG § 7B1.1, p.s. emphasizes that the grade of violation does not depend on the conduct that is the subject of criminal charges of criminal proceeding. which the defendant is convicted in a Rather, the grade of violation is to be based on the defendant s actual conduct. USSG § 7B1.1, p.s., cmt. (n.1). Pratt argues that his most serious supervised release violation was possession of cocaine, a Grade B violation, and that he cannot be deemed to have committed a Grade A violation because the North Carolina state 3 charges against him that amounted to a Grade A violation were dismissed. incorrect. This is simply A violation of the terms of supervised release is determined on the basis of a defendant s conduct and may be found whether offense. Pratt was ever convicted of any particular See United States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002). Further, although a conviction requires proof beyond a reasonable doubt, a violation of supervised release need only be proved by a preponderance of the evidence. See 18 U.S.C. § 3583(e)(3) (2006). Here, Pratt originally had been charged with possession with intent to manufacture, sell, or deliver Schedule II and VI controlled substances, in violation of N.C. Gen. Stat. § 90-95(b)(1), (2) (2007), punishable by more than a year in prison. these N.C. Gen. Stat. § 15A-1340.17(c), (d) (2007). charges ultimately were dismissed, Pratt Although admitted to conduct constituting the felony controlled substance offense of possession with intent to distribute a controlled substance, when he acknowledged that he had been using drugs with some girls and ran out to get more drugs. See State v. Mack, 656 S.E.2d 1, 13 (N.C. Ct. App. 2008) (discussing elements of N.C. Gen. Stat. § 90-95(a) offense). preponderance of the evidence Accordingly, we conclude that a supported the district finding that Pratt committed a Grade A violation. 4 court s In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the judgment revoking Pratt s supervised release and imposing a thirty-month term of imprisonment. This court requires that counsel inform Pratt, in writing, of the right to petition the Supreme Court of the United States for further review. If Pratt requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move representation. in and materials legal before court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Pratt. facts this We dispense with oral argument because the contentions are adequately the and argument court presented would not in the aid the decisional process. AFFIRMED 5
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