US v. James Strickland, No. 10-4240 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4240 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAMES ANTONIO STRICKLAND, a/k/a Stricknine, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (5:97-cr-00135-F-1) Submitted: December 16, 2010 Decided: December 27, 2010 Before GREGORY, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. George E.B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: James Strickland appeals from the sixty-month sentence imposed pursuant to the revocation of his supervised release. Strickland unreasonable because committed a Grade reduction to his contends the A court sentence erred violation original the and sentence in in was determining considering based on the release sentence should statutory be maximum imposed after affirmed and is if it not revocation is plainly within he a prior We affirm. of supervised the applicable unreasonable. United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). making this determination, sentence is unreasonable. we first Id. at 438. had retroactive amendment to the crack cocaine sentencing guideline. A plainly consider whether In the This initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for guideline sentences. 652, 656 (4th Cir. 2007). generally the procedural United States v. Moulden, 478 F.3d In making our review, we follow and substantive considerations that [are] employ[ed] in [the] review of original sentences, . . . with some unique necessary nature of modifications supervised to release Crudup, 461 F.3d at 438-39. 2 take into revocation account the sentences. A sentence procedurally Chapter imposed reasonable Seven policy if upon the revocation district statements and the of court 18 3583(e) (2006); Crudup, 461 F.3d at is considered U.S.C. (2006) factors that it is permitted to consider. § release § the 3553(a) See 18 U.S.C. 438-40. A sentence imposed upon revocation of release is substantively reasonable if the district court stated a proper basis for concluding that the defendant should receive the sentence imposed, up to the statutory maximum. the sentence sentence is is Crudup, 461 F.3d at 440. not found unreasonable. procedurally Id. or We will affirm if at 439. substantively Only if a unreasonable will we decide whether the sentence is plainly unreasonable. Id. Strickland argues that the district court erred in concluding that his most serious new law violation was a Grade A violation rather than a Grade B violation. A Grade A violation results from conduct constituting a federal, state, or local offense punishable by a term of imprisonment exceeding one year that . . . § 7B1.1(a)(1), purposes of is a p.s.. controlled A § 7B1.1(a)(1), substance controlled p.s., offense. substance includes state USSG offense or for 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 3 year in prison. USSG §§ 4B1.2(b), 7B1.1, p.s., comment. (n.3). Any other offense punishable by more than a year in prison is a Grade B violation. USSG § 7B1.1(a)(2), p.s.. The commentary to USSG § 7B1.1, p.s. emphasizes that the grade of violation does not depend charges on of the which proceeding. conduct is the defendant the that subject is convicted of criminal a criminal in Rather, the grade of violation is to be based on the defendant s actual conduct. USSG § 7B1.1, p.s., comment. (n.1); see United States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002) (violation of terms of supervised release is determined based on defendant s conduct and may be found whether defendant Further, was ever although convicted a of any conviction particular requires offense). 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). Strickland contends that his supervised release violation was a Grade B violation because the drugs he admitted to possessing were for his personal use and not intended for distribution. that the We conclude that Strickland failed to demonstrate court erred in finding by a preponderance of the evidence that the drugs were intended for distribution and not personal use. The court did not err in determining that Strickland s conduct constituted a Grade A violation nor abuse 4 its discretion sentence, and in considering Strickland has its not prior shown reduction that the of his sixty-month sentence was plainly unreasonable. We therefore affirm the sentence. oral argument adequately because presented in the the facts and materials We dispense with legal before contentions the court are and argument would not aid the decisional process. AFFIRMED 5
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