US v. Steve Wells, Jr., No. 13-4682 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4682 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. STEVE CHRISTOPHER WELLS, JR., Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Samuel G. Wilson, District Judge. (7:10-cr-00026-SGW-1) Submitted: June 19, 2014 Decided: July 11, 2014 Before KING, GREGORY, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Christine Madeleine Lee, Research and Writing Attorney, Roanoke, Virginia, for Appellant. Timothy J. Heaphy, United States Attorney, Charlene R. Day, Assistant United States Attorney, Elizabeth Noles, Third Year Law Student, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: In July 2010, Steve Christopher Wells, Jr., entered a guilty plea to possession with intent to distribute five grams or more of crack cocaine, § 841(b)(1)(B) (2006). in violation of 21 U.S.C. Without a recidivist enhancement, Wells faced a mandatory minimum sentence of five years imprisonment. Prior to Wells December 2010 sentencing, the Government moved to amend the charge lesser-included (2006). to offense allow of Wells to plead guilty to the violating 21 U.S.C. § 841(b)(1)(C) The Government made this motion to bring Wells case in line with the Fair Sentencing Act of 2010 ( FSA ), which took effect on August 3, 2010. without reservation. Wells agreed to the modification, The district court allowed the amendment and sentenced Wells to twenty-four months imprisonment, to be followed by four years of supervised release. After he was released from prison and while serving his supervised enforcement release, authorities Wells and was arrested charged with by Virginia felony law eluding. Thereafter, Wells federal probation officer filed a violation report. The district court subsequently determined that Wells violated the terms of his supervised release and sentenced Wells to twenty-four months imprisonment, to additional ten years of supervised release. 2 be followed by an On appeal, Wells challenges only the supervised release term that the court ordered. subsequent Specifically, Wells contends that imposition of the additional ten-year term of supervised release violates the Ex Post Facto Clause because it is longer than the supervised release term he faced at the time he committed the underlying violation of § 841(b)(1)(B). 1 We reject this argument and affirm. Wells did not assert this constitutional argument before the district court; as such, we are limited to plain error review. See United States v. Olano, 507 U.S. 725, 732 33 (1993); United States v. Knight, 606 F.3d 171, 177 (4th Cir. 2010) (reviewing challenge Guidelines, to for the which plain error particular was not defendant s edition presented 1 in of the ex the post facto Sentencing district court); Taken together, the relevant statutory provisions authorize a four- to five-year term of supervised release for a violation of § 841(b)(1)(B). See 21 U.S.C. § 841(b)(1)(B) (setting statutory maximum sentence at forty years imprisonment and mandating the imposition of at least a four-year term of supervised release); see also 18 U.S.C. § 3559(a)(2) (2012) (designating any federal offense with a statutory maximum sentence of twenty-five years to life as a Class B felony); 18 U.S.C. § 3583(b)(1) (2012) (authorizing a five-year maximum term of supervised release for Class A or Class B felonies). Comparatively, while there is a statutory minimum three-year term of supervised release that must be imposed in conjunction with a conviction under § 841(b)(1)(C), there is no upper limit as to the term of supervised release that may be ordered. See 21 U.S.C. § 841(b)(1)(C); United States v. Pratt, 239 F.3d 640, 647-48 (4th Cir. 2001). 3 accord United States v. Woodward, 744 F.3d 488, 496 (7th Cir. 2014) (reviewing unpreserved ex post facto claim for plain error). The Ex Post Facto Clause bars application of a law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. United States, 529 U.S. 694, marks and alteration omitted). Post Facto Clause, two 699 (2000) Johnson v. (internal quotation For a law to run afoul of the Ex elements must be present it must operate[ ] retroactively, applying to conduct completed prior to its enactment, and it must raise[ ] the penalty whatever the law provided when [the defendant] acted. Wells claim fails because no retroactively at the revocation proceeding. new law from Id. operated Operative, instead, was the same statutory provision to which Wells consented when he accepted the Government s offer to modify his initial charge of conviction. without applied He agreed to this modification knowingly and reservation. the § 841(b)(1)(C), As supervised as this such, the release was the district provisions basis for court properly relevant Wells to initial conviction and sentence. 2 2 This is line with the general legal principle that postrevocation prison sentences are sentences for the original federal crime, not punishment for the violation of the terms of (Continued) 4 We thus agree with the Government s threshold argument that the Ex Post Facto Clause simply is not implicated here. The deviation between the statutory provision Wells violated when he committed the underlying federal offense in December 2009, and the statutory provision utilized to later determine his supervised release range, resulted from Wells acceptance of the Government s operation of law. offer to reduce his charge, not by any (Appellee s Br. at 13). Accordingly, we affirm the district court s revocation judgment. legal before We dispense with oral argument because the facts and contentions this court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED supervised release. United States v. Fareed, 296 F.3d 243, 247 (4th Cir. 2002) (citing Johnson, 529 U.S. at 700-01). 5

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