United States v. Thomas , 424 F. App'x 254 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4724
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO ANDRE THOMAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:99-cr-00460-PMD-4)
Submitted: March 28, 2011 Decided: April 22, 2011
Before KING, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Gordon Baker, Assistant Federal Public Defender,
Charleston, South Carolina, for Appellant. Matthew J. Modica,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Andre Thomas appeals the district court’s
judgment revoking his supervised release and sentencing him to
thirty months of imprisonment. Thomas’ counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967),
stating that there are no meritorious issues for appeal, but
questioning whether the district court abused its discretion in
classifying new criminal conduct as a Grade A violation and
whether Thomas’ sentence was unreasonable. Although advised of
his right to file a supplemental pro se brief, Thomas has not
done so.
In January 2010, Thomas’ probation officer filed a
petition alleging two violations of supervised release: (1)
failure to refrain from use of controlled substances, based on
three positive tests for marijuana (a Grade C violation), and
(2) a state conviction for conspiracy to possess cocaine. At
the revocation hearing, Thomas argued that although he had been
charged in the state court with trafficking cocaine, he pled
guilty to drug conspiracy to possess cocaine and therefore, the
conviction should count as a Grade B — and not a Grade A —
violation. The district court disagreed, concluding that the
state conviction should be counted as a Grade A violation, based
on the totality of the circumstances surrounding Thomas’ arrest.
With a criminal history category of I, the advisory guidelines
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range was twenty-four to thirty-four months; the court imposed a
thirty-month term of imprisonment. Thomas noted a timely
appeal.
We review a district court’s judgment revoking
supervised release and imposing a term of imprisonment for abuse
of discretion. United States v. Pregent, 190 F.3d 279, 282 (4th
Cir. 1999). To revoke supervised release, a district court need
only find a violation of a condition of supervised release by a
preponderance of the evidence. 18 U.S.C. § 3583(e)(3) (2006).
This burden “simply requires the trier of fact to believe that
the existence of a fact is more probable than its nonexistence.”
United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)
(internal quotation marks omitted). Appellate courts review the
district court’s factual findings for clear error. United
States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003); United
States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996). There is
clear error if the court, after reviewing the record, is left
with “a definite and firm conviction that a mistake has been
committed.” Anderson v. City of Bessemer City, N.C., 470 U.S.
564, 573 (1985) (internal quotation marks and citation omitted).
It is not enough for the court to conclude it would have decided
the case differently. Id.Thomas claims first that the district court committed
clear error in concluding that his new criminal conduct was a
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Grade A 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 . . . is a
controlled substance offense.” USSG § 7B1.1(a)(1). 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, that are
punishable by more than a year in prison. USSG §§ 4B1.2(b),
7B1.1 cmt. (n.3). Any other offense punishable by more than a
year in prison is a Grade B violation. USSG § 7B.1(a)(2). 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 which the defendant is convicted in a
criminal proceeding. Rather, the grade of violation is to be
based on the defendant’s actual conduct.” USSG § 7B1.1, p.s.,
cmt. (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 was ever convicted of any particular offense). We
find no error in the district court’s conclusion that Thomas’
conduct warranted an inference that he intended to distribute
the drugs at issue in his state court proceedings; accordingly,
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the district court did not clearly err in concluding that his
conviction constituted a Grade A violation.
Next, counsel questions the reasonableness of Thomas’
sentence. A sentence imposed after revocation of supervised
release should be affirmed if it is within the applicable
statutory maximum and is not plainly unreasonable. United
States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006). In
making this determination, this court first considers whether
the sentence imposed is procedurally or substantively
unreasonable. Id. at 438. “This 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, 656 (4th
Cir. 2007) (internal quotation marks omitted).
A sentence imposed upon revocation of release is
procedurally reasonable if the district court considered the
Chapter Seven policy statements and the applicable 18 U.S.C.
§ 3553(a) (2006) factors, see 18 U.S.C. § 3583(e); Crudup, 461
F.3d at 438-40, and adequately explained the sentence imposed,
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). 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, within the statutory maximum. Crudup, 461 F.3d at 440.
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This court will affirm if the sentence is not unreasonable. Id.
at 439. Only if a sentence is found procedurally or
substantively unreasonable will the court “decide whether the
sentence is plainly unreasonable.” Id. “[T]he court ultimately
has broad discretion to revoke its previous sentence and impose
a term of imprisonment up to the statutory maximum.” Id.(internal quotation marks omitted).
Here, we have reviewed the record and conclude that
the district court did not impose an unreasonable sentence, let
alone one that is plainly so. Thomas received a sentence within
the Guidelines range for his offense, and the court offered an
adequate explanation to preserve the sentence upon appellate
review. The district court initially considered an upward
departure based on Thomas’ repeated violations of the conditions
of his supervised release; however, the court ultimately decided
to impose a sentence within the guidelines range because Thomas
had an eighteen-month state sentence to serve in addition to his
federal sentence. Accordingly, we find the sentence both
procedurally and substantively reasonable.
Therefore, we affirm Thomas’ sentence. In accordance
with Anders, we have reviewed the entire record for meritorious
issues and have found none. We therefore affirm. This court
requires that counsel inform her client, in writing, of his
right to petition the Supreme Court of the United States for
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further review. If the client requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that
a copy was served on the client. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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