United States v. White , 77 F. App'x 194 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4392
WARREN WHITE,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry Coke Morgan, Jr., District Judge.
(CR-98-19)
Submitted: September 24, 2003
Decided: October 9, 2003
Before WILLIAMS, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Frank W. Dunham, Jr., Federal Public Defender, Larry W. Shelton,
Supervisory Assistant Federal Public Defender, Norfolk, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Robert J. Krask,
Assistant United States Attorney, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WHITE
OPINION
PER CURIAM:
Warren White appeals the district court’s order revoking his super-
vised release and sentencing him to seventeen months of imprison-
ment. We affirm.
We review a district court’s order imposing a sentence after revo-
cation of supervised release for abuse of discretion. United States v.
Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). The district court abuses
its discretion when it fails or refuses to exercise its discretion or when
its exercise of discretion is flawed by an erroneous legal or factual
premise. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). The
district court need only find a violation of a condition of supervised
release by a preponderance of the evidence. See 18 U.S.C.
§ 3583(e)(3) (2000). Moreover, because White’s sentence does not
exceed the statutory maximum sentence under § 3583(e)(3), we
review the sentence only to determine whether it is "plainly unreason-
able." See 18 U.S.C. § 3742(a)(4) (2000).
On appeal, White contests only the finding that he committed a
Grade A violation of his supervised release by possessing an M-16
rifle. White argues that, because he had been ordered to active duty
in the United States Army and ordered to carry the M-16 while on
duty as a gate guard at MacDill Air Force Base, his possession of the
M-16 is exempted from the prohibition in 18 U.S.C. § 922(g) (2000),
under the exemption contained in 18 U.S.C. § 925(a) (2000). Our
review of the record of the revocation hearing leads us to agree with
the Government’s argument that White failed to raise a statutory
exemption defense before the district court. We therefore consider the
district court’s conclusion that White committed a Grade A violation
of his supervised release by unlawfully possessing an M-16 rifle for
plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 731-32 (1993); United States v. Carr, 303 F.3d 539, 543
(4th Cir. 2002) ("[A]n appellate court may correct an error not
brought to the attention of the trial court if (1) there is an error (2) that
is plain and (3) that affects substantial rights. If all three of these con-
ditions are met, an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error seriously affects the
UNITED STATES v. WHITE 3
fairness, integrity, or public reputation of judicial proceedings."
(internal quotation marks and alteration omitted)), cert. denied, 123
S. Ct. 929 (2003).
We conclude that the district court’s failure to determine that
White’s possession of the firearm in question was covered by the
exemption in § 925(a) amounted to error that was plain. Even if
White could demonstrate that this error affected his substantial rights,
the error does not seriously affect the "fairness, integrity or public
reputation of" any "judicial proceeding[]." As noted by the district
court, White committed three other violations that were essentially
uncontested, and this was the third occasion that White was found to
have committed multiple violations of his supervised release. The
record reveals that White essentially completely disregards the
requirements of his supervised release until faced with a petition for
violation. Given that this incident was his third violation, and that
prior sentences of thirty days and six months of incarceration were
inadequate to dissuade White from further violations, a sentence of
the maximum term of imprisonment available does not in any way
suggest any unfairness in the judicial proceedings.
We accordingly affirm the order of the district court revoking
White’s supervised release and imposing a seventeen month term of
imprisonment. 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