United States v. James Henry Strong ( 2018 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4204
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAMES HENRY STRONG, a/k/a Pappy,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Greenville. Terrence W. Boyle, District Judge. (4:12-cr-00084-BO-1)
Argued: March 20, 2018 Decided: April 6, 2018
Before MOTZ, TRAXLER, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Sonya Maria Allen, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Raleigh, North Carolina, for Appellant. Kristine L. Fritz, OFFICE OF THE UNITED
STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Louis C.
Allen, Acting Federal Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina,
for Appellant. John Stuart Bruce, United States Attorney, Jennifer P. May-Parker, First
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
James Henry Strong appeals a 24-month sentence imposed by the district court
after the court concluded he had violated the terms of his supervised release. We affirm.
I.
In 2012, Strong pled guilty to two counts of distribution of cocaine base and
aiding and abetting, in violation of 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(1)(C)
(2012), and 18 U.S.C. § 2 (2012). The court sentenced him to 48 months in prison and
36 months of supervised release.
On December 24, 2014, Strong began to serve his supervised release term. Less
than two years later, in October 2016, Strong’s probation officer petitioned the district
court to revoke the supervised release term and arrest Strong. The officer alleged that
Strong had violated the terms of his supervision by selling or delivering heroin and had
been charged for this crime in North Carolina state court.
The district court issued a warrant, and authorities arrested Strong on March 3,
2017. Upon his arrest, police discovered heroin on Strong’s person and a digital scale,
three cell phones, and $2,210 in cash inside his vehicle. The State subsequently charged
Strong with additional drug crimes, and the probation officer filed an amended revocation
request reflecting this second violation.
At the revocation hearing on March 28, 2017, Strong did not contest the two
revocation violations. The Government then presented evidence, and the district court
subsequently found that Strong had violated the terms of his supervised release. Turning
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to sentencing, the probation officer explained that “the normal guideline range in this
case would be 30 to 37 months,” but that the “statutory maximum” was 24 months. The
district court afforded defense counsel an opportunity to speak. Defense counsel noted,
inter alia, that Strong had served all of his sentence; participated in a drug rehabilitation
program; obtained employment; suffered an injury; and was married and had children.
Defense counsel argued, “the guideline range is so high here, we would just ask if there’s
any way you could go below the guideline range and give him a chance to get out and
hopefully take care of his family.”
Strong then made a personal statement. Before he got very far, however, the
district court urged him to “do the right thing,” chastised him for not providing
information as to his sources of heroin, and wondered aloud who he might be
“protecting” by his refusal to speak. In response, Strong explained that he did not
cooperate with law enforcement because he did not want to be labeled a “snitch.” The
court concluded that this meant Strong preferred prison to being a snitch. The court
suggested that Strong’s reluctance to cooperate was what was “putting [him] in jail.” The
court sentenced Strong to 24 months in prison. Defense counsel responded, “Thank you,
Your Honor,” and the revocation hearing ended.
II.
On appeal, Strong claims the revocation sentence is plainly unreasonable, because
the district court relied on an impermissible factor — his refusal to provide information
about his sources of illegal drugs — when determining his sentence. Appellant’s Br. at
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13. Counsel maintains that by “exhort[ing] [Strong] to come clean and give up his drug
connection,” the district court effectively asked him to “admit his involvement in
narcotics dealing” and thus “incriminate himself.” When he refused to do so, the court
concluded Strong “should receive the maximum sentence of imprisonment,” because he
had “chosen to exercise his rights under the Fifth Amendment.” That is, the district court
purportedly erred “by requiring Mr. Strong to implicate himself in drug dealing in order
to receive ‘mercy’ on the revocation sentence.” Contending that the sentence is
procedurally and substantively unreasonable, Strong asks us to vacate it. Id. at 17–18.
We can grant relief only if we find the district court plainly erred in imposing the
sentence. Plain error review applies because Strong never voiced his Fifth Amendment
concerns to the district court. In fact, neither Strong nor his counsel lodged any
objections — let alone objections related to the Fifth Amendment or the district court’s
colloquy with Strong — during the revocation hearing. See United States v. Hargrove,
625 F.3d 170, 184 (4th Cir. 2010) (applying plain-error review where the defendant
argued for the first time on appeal that the district court erred by considering an
“improper factor” — that the defendant had exercised his right to a trial — during a post-
conviction sentencing hearing); United States v. Bennett, 698 F.3d 194, 199 (4th Cir.
2012) (applying plain-error review, because the defendant “did not object at the
revocation hearing on the grounds asserted” on appeal).
Because plain-error review applies, Strong bears the burden of establishing (1) that
the district court erred; (2) that the error was “plain”; (3) that the error affected the
outcome of the district court proceedings; and (4) that this court should not exercise its
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“discretion to deny relief” because doing so would not “result in a miscarriage of justice.”
Bennett, 698 F.3d at 200 (internal quotation marks omitted). Strong cannot meet this
heavy burden, because it requires him to show, inter alia, that the district court “plainly”
erred by imposing a sentence that runs afoul of clearly settled law. See id.; United States
v. Slappy, 872 F.3d 202, 208 (4th Cir. 2017).
Neither the Supreme Court nor this court have yet determined whether a district
court violates the Fifth Amendment by imposing a harsher sentence in light of a
defendant’s failure to cooperate. See United States v. Yanez-Hernandez, 416 F. App’x
322, 323 (4th Cir. 2011). Our sister circuits have reached different conclusions.
Compare United States v. Price, 988 F.2d 712, 722 (7th Cir. 1993) (concluding that
district courts are “free to consider a defendant’s lack of cooperation in assigning a
sentence within the Guidelines range”), with United States v. Safirstein, 827 F.2d 1380,
1388 (9th Cir. 1987) (“[A] sentencing judge may not penalize the exercise of a
defendant’s privilege against self-incrimination by enhancing his sentence based upon the
defendant’s failure to cooperate by implicating other persons or otherwise admitting guilt
to crimes with which he is not charged.”). Because there is no binding authority on point
and other circuits are divided on this issue, the district court did not commit plain error.
III.
For the foregoing reasons, the judgement of the district court is
AFFIRMED.
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