United States v. Tyrone Bullock , 576 F. App'x 120 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 13-4662
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UNITED STATES OF AMERICA,
v.
TYRONE BERNARD BULLOCK,
Appellant
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On Appeal From the United States District Court for the
Western District of Pennsylvania
(Case No. 2-06-cr-00328-001)
District Judge: Honorable Cathy Bissoon
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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 26, 2014
Before: McKEE, Chief Judge, and FUENTES and GREENAWAY, JR., Circuit Judges.
(Filed: August 14, 2014)
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OPINION
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FUENTES, Circuit Judge:
The District Court sentenced Tyrone Bullock to 21 months’ imprisonment for
violating the terms of his supervised release. Bullock now appeals, arguing that the
District Court erred by finding that he committed a Grade B, rather than a Grade C,
violation of the terms of his supervised release. For the reasons that follow, we affirm.
I. Background
Tyrone Bullock pleaded guilty to one count of possession with intent to deliver
one hundred grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(i). He was sentenced to 168 months’ incarceration and five years of
supervised release. Bullock’s supervised release conditions prohibited him from, among
other things, unlawfully possessing a controlled substance and violating state and federal
law.
After serving his sentence, Bullock began his term of supervised release. Within
five months, Bullock tested positive twice for heroin. When confronted by his Probation
Officer, Bullock admitted that he had used heroin on a weekly basis. After failing to
complete several drug treatment programs, Bullock’s conditions for supervised release
were modified, by consent, to include participation in the Probation Office Intermediate
Sanction Program. Bullock failed to attend several mandatory Program sessions. He also
tested positive to heroin on four more occasions.
Thereafter, Bullock’s Probation Officer filed a petition detailing the nature of
Bullock’s non-compliance, and alleging that Bullock had violated the terms of his
supervised release by: (1) failing to “refrain from any unlawful possess[ion of] a
controlled substance,” (2) failing to “submit to urinalysis as directed by the probation
officer and [] participate in a substance abuse treatment program as directed by the
probation officer,” and (3) failing to “complete the Probation Office Intermediate
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Sanction Program.” App’x 22. On Bullock’s “Violation Work Sheet,” the Probation
Officer indicated that Bullock’s unlawful possession of a controlled substance could
either be a Grade B or C violation, and that the other two violations were Grade C.1
At his supervised release revocation hearing, Bullock conceded that he had
violated the terms of his supervised release. Bullock argued, however, that his use of
heroin constituted nothing more than a violation of his condition of supervised release
conditions, a “classic Grade C violation.” App’x 33. The District Court disagreed. It
found that “defendant’s admission to habitually using heroin, along with his multiple
positive drug tests, constitute[ed] evidence of drug possession in violation of 21 U.S.C.,
Section 844(a).” App’x 41. Because the maximum sentence under § 844 for a defendant
with prior possessions exceeds one year, the District Court concluded that Bullock had
committed a Grade B violation. The District Court sentenced Bullock to 21 months, the
bottom of the guideline range for a Grade B. Bullock now appeals.2
II. Analysis
A.
1
Section 7B1.1 of the sentencing guidelines outlines three grades of supervised release
violations, ranging from Grade A, the most serious, to Grade C, the least serious.
U.S.S.G. § 7B1.1(a). Relevant here, Grade B is a violation consisting of “conduct
constituting any other federal, state, or local offense punishable by a term of
imprisonment exceeding one year,” while, a Grade C violation consists of “conduct
constituting (A) a federal, state, or local offense punishable by a term of imprisonment of
one year or less; or (B) a violation of any other condition of supervision.” Id.
2
The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We
have jurisdiction to review Bullock’s sentence under 28 U.S.C. § 1291. We review for
clear error the factual findings supporting a district court’s revocation of supervised
release, while any legal issues are subject to a de novo standard of review. See, e.g.,
United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008).
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Bullock contends that he lacked sufficient written notice that he was facing a
Grade B violation. He notes that his supervised release petition “only stated that [he]
violated the conditions of his release,” a Grade C violation, not that he possessed heroin
in violation of federal law, a Grade B violation.3 Appellant’s Br. 8.
The Federal Rules of Criminal Procedure entitle a person subject to a revocation
hearing to “written notice of the alleged violation.” Fed. R. Crim. P. 32.1(b)(2)(A); cf.
Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (noting that revocation of supervised
release “is not part of criminal prosecution and thus the full panoply of rights due a
defendant in such a proceeding does not apply”). “For notice to be effective” under Rule
32.1, “it need only assure that the defendant understands the nature of the alleged
violation.” United States v. Sistrunk, 612 F.3d 988, 992 (8th Cir. 2010).
In other words, a defendant’s right to pre-hearing notice is satisfied where he has
written notice of the conduct on which his revocation is based. United States v. Gordon,
961 F.2d 426, 429-30 (3d Cir. 1992). Thus, in Gordon, we held that a defendant had
adequate notice where the district court relied on two positive drug tests discussed in the
probation violation petition to determine that the defendant had possessed a controlled
substance, despite that fact that “the probation violation petition did not formally charge
her with use or possession of a controlled substance.” Id. at 429. This was sufficient
notice, we explained, because “[t]his court has stated that drug use indicated by urinalysis
3
More precisely, possession of heroin is a Grade B violation only where it is punishable
by a term of imprisonment of more than one year. As we explain in more detail below,
however, heroin possession is punishable by a term of imprisonment of more than one
year where, as here, the defendant is a repeat offender. See 21 U.S.C. § 844.
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is [] circumstantial evidence of drug possession.” Id. (citing United States v. Blackston,
940 F.2d 877, 886 (3d Cir. 1991)); cf. Sistrunk, 612 F.3d at 992 (finding factual
allegations that defendant fraudulently obtained state identification cards and a credit
card to be sufficient notice of the charge, despite the fact that the Government did not
specify in advance which laws the defendant violated).
Like the defendant in Gordon, Bullock had adequate notice that he would be found
to have possessed drugs. Bullock not only tested positive six times to heroin use, but he
also admitted his habitual drug use to his Probation Officer. Under our case law, this is
more than enough notice, for Bullock, and evidence, for the District Court, to find that
Bullock possessed drugs, in violation of state and federal law. See Gordon, 961 F.2d at
429-30; see also Blackston, 940 F.2d at 891. The allegations in the petition, combined
with our case law, put Bullock on notice that he faced the possibility of being sentenced
as a Grade B violator.4
B.
Bullock next argues that even if he had notice that he possessed heroin in violation
of state of federal law, the District Court nonetheless erred in finding that he committed a
Grade B violation rather than a Grade C violation. This is so, he contends, because his
conduct was not “punishable by a term of imprisonment exceeding one year.”
U.S.S.G. § 7B1.1(a)(1).
4
Moreover, although Bullock was not entitled to pre-hearing notice that his he would be
found to have possessed drugs, he received actual written notice that through his
Violation Work Sheet, which stated that his heroin use amounted to a Grade “B-C”
violation. App’x 25. The Work Sheet gave Bullock more than adequate notice that he
should prepare to be found to have possessed heroin in violation of state or federal law.
5
The District Court concluded that Bullock violated 21 U.S.C. § 844(a), which
provides that simple possession of a controlled substance is punishable by “a term of
imprisonment of not more than 1 year . . . except that if he commits such offense after a
prior conviction [for drug possession], he shall be sentenced to a term of imprisonment
for not less than 15 days but not more than 2 years.” 21 U.S.C. § 844(a).
Bullock concedes that he is a repeat offender and therefore eligible for a sentence
exceeding one year. See United States v. Bungar, 478 F.3d 540, 545 (3d Cir. 2007). He
argues, however, that the District Court was precluded from finding him a repeat offender
in this instance, because the Government failed to file a notice, under 21 U.S.C. § 851,
that it would ask the Court to consider Bullock’s “underlying conviction as a predicate
conviction allowing for the enhanced penalties for simple possession of Title 21, U.S.C. §
844.” Appellant’s Br. 15.
Section 851 obliges the government to notify a defendant that his prior crimes will
increase his punishment. Section 851 provides in relevant part that:
[n]o person who stands convicted of an offense under this part shall be sentenced
to increased punishment by reason of one or more prior convictions, unless before
trial, or before entry of a plea of guilty, the United States attorney files an
information with the court (and serves a copy of such information on the person or
counsel for the person) stating in writing the previous convictions to be relied
upon.
21 U.S.C. § 851(a)(1). By its plain language, § 851(a) applies where a defendant “stands
convicted” of drug possession. Nothing in § 851 suggests, however, that the statute
applies in the supervised release revocation context, where a district court need only
determine that defendant’s conduct would be “punishable by a term of imprisonment
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exceeding one year” under U.S.S.G. § 7B.1(a)(2); see also id. cmt. n.1 (explaining that
“[t]he grade of the violation does not depend upon the conduct that is the subject of
criminal charges or of which the defendant is convicted in a criminal proceeding. Rather,
the grade of the violation is to be based on the defendant’s actual conduct.”).
Additionally, revocation of supervised release is determined by hearings, and § 851 seeks
to protect a defendant who is subject to trial. United States v. Lewis, 597 F.3d 1345, 1347
(7th Cir. 2010) (explaining that § 851 “give[s] a defendant an opportunity to contest the
accuracy of his prior convictions and to inform his decision on whether to plead guilty or
proceed to trial” (emphasis added)).
In short, the District Court did not commit procedural error by finding that
Bullock’s possession of heroin was a crime punishable under federal law for a term of
imprisonment exceeding one year. By extension, the District Court did not err in
concluding that Bullock’s conduct constituted a Grade B, not a Grade C, violation.
III. Conclusion
For the forgoing reasons, we affirm Bullock’s sentence in all respects.
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