US v. Henry Clyburn, No. 10-4737 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4737 UNITED STATES OF AMERICA, Plaintiff Appellee, v. HENRY LEE CLYBURN, Defendant Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:04-cr-00148-FDW-1) Submitted: February 24, 2011 Decided: March 17, 2011 Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Richard Lee Edwards, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Upon release, which revocation was of imposed Henry as Lee part Clyburn s of his supervised sentence for possession of a firearm by a convicted felon, the district court sentenced Clyburn to twenty-four months imprisonment and twelve months of supervised release. Clyburn appeals this sentence, asserting five grounds for vacatur: first, that the district court erred in vacating an eleven-month sentence it proposed and proceeding to admissions second, to that address certain Clyburn s violations Clyburn s trial request of his counsel to withdraw supervised rendered his release; ineffective assistance; third, that the district court acted vindictively in sentencing Clyburn to twenty-four months imprisonment; fourth, that the twenty-four month sentence is plainly unreasonable; and fifth, that the district court erred in imposing the additional twelve-month term of supervised release. We affirm. I. Clyburn pled guilty to one count of possession of a firearm by a convicted felon, was in violation sentenced in § 922(g)(1) (2006), and fifty-seven months imprisonment supervised release. Clyburn followed began supervised release on August 7, 2009. 2 of 18 November by serving U.S.C. 2005 to three years of his term of In May 2010, Clyburn s probation officer Clyburn s supervised Clyburn had petitioned the release, violated his district alleging supervised in court the release to revoke petition by that traveling to Florida without prior authorization (violation four) and being charged in state court with four criminal offenses: an April 2010 simple assault (violation one), aiding and abetting (violation two), possession of marijuana (violation three), and driving with a revoked license and giving fictitious information to an officer (violation five). In an addendum to the petition, the probation officer alleged that Clyburn had further violated his supervised release by being charged in state court with three additional criminal offenses: resisting a public officer (violation six), lacking fictitious information an operator s an officer to license (violation and giving seven), and simple assault (violation eight). At the revocation hearing, counsel for the Government moved to dismiss violations three and five and informed the district court that, in exchange for Clyburn s guilty plea to violation one, the Clyburn s attorney Government informed would the dismiss district violation court that two. Clyburn would admit violations one, four, six, seven, and eight, and the district court found that Clyburn had violated his supervised release. The court calculated the advisory policy statement range five at to eleven months 3 imprisonment, see U.S. Sentencing Guidelines Manual ( USSG ) §§ 7B1.1(a)(3), (b), p.s., 7B1.4(a), p.s. (2009), and heard argument from counsel, allocution from Clyburn, and the unsworn statement of the victim of the simple discussing assault relevant at issue sentencing in violation factors, After district the one. court announced a proposed sentence of eleven months imprisonment, followed by twenty-five months of supervised release. As the court was advising Clyburn of his appellate rights, Clyburn s counsel interrupted and informed the court that Clyburn wished to withdraw his admissions to violations one and eight. The district court proposed that the Government present its evidence and admonished Clyburn that, as a result of the withdrawal of his admission of guilt to violation one, the agreement with the Government with respect to its dismissal of violation two was no longer binding. The court also advised Clyburn and ensured that he understood that it was no longer bound by its proposed sentence and that he faced a statutory maximum revocation sentence of twenty-four months imprisonment. The Government dismissed violation eight and presented the testimony of three witnesses pertaining to the assault at issue in violation one. After hearing this testimony and argument from counsel, the district court found that Clyburn committed violations one, two, supervised release. four, six, and seven and revoked his The court again calculated the advisory 4 policy statement range at five to eleven months imprisonment and sentenced Clyburn to twenty-four months imprisonment followed by twelve months of supervised release. This appeal followed. II. Clyburn claims that the district erred in vacating the eleven-month prison sentence. In Clyburn s view, the court, by announcing the proposed sentence of eleven months imprisonment, ascertaining that no party objected to that sentence, and then immediately thereafter advising him of his appellate rights, imposed a revocation sentence of eleven months imprisonment. Having imposed such a sentence, the court, Clyburn contends, should have then adjourned the revocation proceeding and erred by vacating the eleven-month sentence and proceeding to address his request to withdraw his admissions to violations one and eight. Because Clyburn did not object to these actions in the district court, we review this claim for plain error. See Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009). To prevail under this standard, Clyburn must establish that an error was made, is plain, and affected his substantial rights. Id. at 1428-29. In the sentencing context, an error affects substantial rights if, absent the error, a lower sentence would 5 have been imposed. United States v. Knight, 606 F.3d 171, 178 (4th Cir. 2010). We conclude that Clyburn fails to make the required showing. His assertion that the district court eleven-month prison sentence is simply incorrect. imposed an Rather, the court merely announced a proposed sentence of eleven months imprisonment. That the court announced a proposed sentence and then made a seriatim announcement of Clyburn s appellate rights does not, without more, proposed sentence. eleven-month amount to the imposition of that Because the district court did not impose an prison term, Clyburn s claim that the district court erred in vacating that term and proceeding to address his request to withdraw his admissions to violations one and eight is without merit. otherwise by Clyburn thus fails to show error plain or the district court, and this claim therefore counsel rendered fails. III. Next, ineffective Clyburn assistance. suggests Claims that of trial ineffective assistance counsel generally are not cognizable on direct appeal. States v. King, 119 F.3d 290, 295 (4th Cir. 1997). of United Rather, to allow for adequate development of the record, a defendant must bring his claim in a 28 U.S.C.A. 6 § 2255 (West Supp. 2010) motion. Id. An exception exists where the record conclusively establishes ineffective assistance. United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). To succeed on his claim, Clyburn must show that (1) trial counsel s performance was constitutionally deficient and (2) such deficient performance was prejudicial. v. Washington, 466 U.S. 668, 687-88, 692 (1984). Strickland To satisfy the performance prong, Clyburn must demonstrate that trial counsel s performance fell below an objective standard of reasonableness under prevailing professional norms. Id. at 688. The prejudice prong is satisfied if Clyburn can demonstrate that there is a reasonable probability that, but for [trial] counsel s unprofessional errors, the result of the proceeding would have been different. Id. at 694. Clyburn asserts that, by informing the district court that he objected to and wished to withdraw his admissions to violations one and assistance by sell[ing] Clyburn, however, informing the violations eight, fails district amounts to trial him to court counsel out to explain of performance rendered the how Clyburn s falling ineffective district counsel s position below an court. act on of those objective standard of reasonableness under prevailing professional norms. Moreover, he does not suggest that, but for counsel s error, the result of the revocation hearing 7 would have been different. Accordingly, because ineffective assistance of counsel does not conclusively appear on this record, this claim is not cognizable in this appeal. IV. Clyburn also claims that the district court s decision to impose the twenty-four month prison sentence was vindictive. More specifically, he claims that the district court s sentencing decision was motivated by a desire to punish him for expressing his sentence. [I]t unhappiness is beyond with the doubt eleven-month that a sentence prison enhanced, whether before or after commencement of service, because of the vindictiveness or other plainly improper motive of the trial court would be fundamentally defendant due process. 987 (4th Cir. unfair and . . . den[ies] the United States v. Lundien, 769 F.2d 981, 1985). Generally, however, judicial vindictiveness will not be presumed, and the burden remains with the defendant to prove actual vindictiveness. See Alabama v. Smith, 490 U.S. 794, 799 (1989). We find no evidence in the record that the district court acted vindictively in sentencing Clyburn to the twentyfour month prison term. After Clyburn withdrew his admissions to violations one and eight, the district court ensured that he understood that the eleven-month sentence was only a proposed 8 sentence it was not bound to impose. Thus, any expectation Clyburn may have had as to the length of his revocation sentence had not crystallized such that it would be unfair to defeat it by allowing the court to hear the Government s evidence on those violations Clyburn belatedly contested. at 987. the See Lundien, 769 F.2d Moreover, as the district court explained, it imposed twenty-four withdrawing his appropriate in month sentence admissions, light of not but relevant to punish Clyburn for that sentence was because 18 U.S.C. § 3553(a) (2006) sentencing factors applicable to revocation sentences. While Clyburn is correct that the district court based its sentencing revocation revocation decision hearing, sentence, characteristics 18 U.S.C.A. and § 3583(e) a in part district on court properly behavior may, consider history. (West his 18 2006 & in the U.S.C. Supp. at imposing the a defendant s § 3553(a)(1), 2010). Here, the district court did just that, making note of Clyburn s criminal history and failure to show remorse by admitting his guilt on violation one, and the court s assessment that Clyburn initially agreed to plead guilty to the violation only because he expected that doing so would result in a favorable because he was guilty of the violation. sentence and not Because the record demonstrates valid reasons for the court s imposition of the twenty-four month sentence, there 9 is no basis from which to presume that the court acted with vindictiveness or any other improper motive in imposing the sentence. at 799. See Smith, 490 U.S. Accordingly, this claim fails. V. Clyburn month also revocation summarily sentence is claims that unreasonable. the twenty-four This court will affirm a sentence imposed after revocation of supervised release if it is within the applicable statutory maximum and is not plainly unreasonable. 437, 439-40 (4th United States v. Crudup, 461 F.3d 433, Cir. 2006). In determining whether a revocation sentence is plainly unreasonable, we first assess the sentence for unreasonableness, follow[ing] generally the procedural and substantive considerations that we employ in our review of sentence original is sentences. procedurally Id. reasonable at 438. if the A revocation district court considered the Guidelines Chapter 7 advisory policy statements and the 18 U.S.C. § 3553(a) factors that it is permitted to consider in a supervised release revocation case. A revocation district sentence court stated defendant should statutory maximum. is a receive Id. substantively proper the basis sentence Only if Id. at 440. reasonable for if the concluding the imposed, a sentence up is to the found procedurally or substantively unreasonable will we then decide 10 whether the sentence (emphasis omitted). is plainly unreasonable. at 439 A sentence is plainly unreasonable if it is clearly or obviously unreasonable. Clyburn Id. fails to show Id. that his prison sentence is plainly unreasonable. twenty-four month It is undisputed that the sentence does not exceed the applicable statutory maximum of two years imprisonment, 18 U.S.C.A. § 3583(e)(3), demonstrated any unreasonableness see and claim in the 18 U.S.C. Clyburn § 3559(a)(3) not procedural of has or sentence. (2006); asserted or substantive Accordingly, this claim likewise fails. VI. Finally, Clyburn claims that the district court erred in imposing release. the the additional twelve-month term of supervised Because Clyburn did not object to the imposition of additional term of supervised release at hearing, we review this claim for plain error. the revocation See Puckett, 129 S. Ct. at 1428-29. Section 3583(h) of Title 18 of the United States Code limits the revocation maximum to the term of term of supervised supervised release release imposed upon authorized by statute for the offense that resulted in the original term of supervised release, less any term 11 of imprisonment that was imposed upon revocation of supervised release. § 3583(h). 18 U.S.C.A. Clyburn s gun possession conviction is a Class C felony, see 18 U.S.C. §§ 924(a)(2), 3559(a)(3) (2006), and three years is the statutory maximum term of supervised release authorized for such an offense, see 18 U.S.C.A. § 3583(b)(2). Applying the imprisonment requirement imposed upon in § 3583(h) revocation be that any term of subtracted from the statutorily-authorized term of supervised release, the district court here was permitted to impose up to a one-year term of supervised release upon revocation. sentence the district court imposed. with the applicable statutes and, That is exactly the This sentence complies contrary to Clyburn s argument, the relevant policy statement, see USSG § 7B1.3(g)(2), p.s. VII. Accordingly, we affirm the district court s judgment and deny as moot Clyburn s motion to expedite our decision. dispense with oral argument because the facts and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 12

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