UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-4879
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KATIE MARIE REAVELY,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Anderson. Bruce H. Hendricks, District Judge. (8:16-cr-00535-BHH-1)
Submitted: June 1, 2020 Decided: July 16, 2020
Before DIAZ, FLOYD, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Johnson, Eutawville, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Katherine Hollingsworth Flynn, Assistant United States Attorney, Jamie L. Schoen, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Katie Reavely appeals the revocation of her supervised release and her consequent
sentence of 18 months’ imprisonment. We affirm.
In the fall of 2017, Reavely began a five-year term of supervised release for her
participation in a bank fraud conspiracy. At first, Reavely was reportedly doing well on
that release. However, on April 19, 2018, she was at a friend’s home in Decatur, Georgia,
when DeKalb County police officers executed a search warrant. The home was serving as
a THC-edibles bakery business, with a plethora of signage and products. Police found
approximately 1600 grams of marijuana, 1 gram of cocaine, various baked goods
containing THC, and marijuana cigarettes. They also discovered two firearms. Video
footage in the record captures the execution of the warrant and shows Reavely in the home.
In May 2018, Reavely’s probation officer alleged four violations stemming from
this occasion: (1) criminal conduct; (2) possession of a controlled substance (1 gram of
cocaine, 1606.2 grams of marijuana, edible THC products, and marijuana cigarettes);
(3) unlawful possession of a firearm; and (4) communication and interaction with persons
known to be engaged in criminal activity. Reavely’s alleged criminal conduct under
Violation One included the following state felonies, with which she was charged: (1) three
counts of purchase, possession, manufacturing, distribution, or sale of controlled
substances; (2) two counts of possession of a firearm during the commission of or attempt
to commit a crime; and (3) possession and use of drug related objects. With respect to
Violation Four, the probation violation report noted that Reavely was suspected of doing
accounting work for the THC-edibles bakery business, and that related ledgers and receipts
2 were found in her car. At her revocation hearing, Reavely stipulated to Violations Two
and Four: possession of the various controlled substances found and being with people
known to be conducting criminal activity.
As admitted, Reavely committed a Grade A violation, meaning the court “shall
revoke” her supervised release, or at least is advised to do so. See 18 U.S.S.G.
§ 7B1.3(a)(1). She faced a Guidelines range sentence of 12 to 18 months’ imprisonment.
Additionally, Reavely’s possession of a controlled substance triggered § 3583(g),
revocation provision that stripped the sentencing judge of discretion not to revoke her
supervised release upon the finding of a drug-possession violation. See 18 U.S.C.
§ 3583(g)(1) (the court “shall revoke the term of supervised release and require the
defendant to serve a term of imprisonment not to exceed the [statutory maximum]” if the
defendant “possesses a controlled substance”). The district court revoked Reavely’s
supervised release and sentenced her at the top of the Guidelines range to 18 months’
imprisonment, to be followed by 24 months of supervised release.
On appeal, Reavely challenges for the first time the constitutionality of § 3583(g),
both facially and as applied. Reavely relies on Haymond, in which the Supreme Court
struck down a different mandatory revocation provision, § 3583(k), for violating the Fifth
and Sixth Amendments because it resembles criminal punishment for a new offense
without any trial rights, rather than a sanction for breach of the court’s trust. See generally
United States v. Haymond, 139 S. Ct. 2369 (2019). Alternatively, she argues that her
sentence should be vacated because it is plainly unreasonable, contending that it was
(1) based on a clearly erroneous finding that she was involved in the THC-edibles bakery
3 business, and (2) longer than the sentence would be if she were criminally convicted for
possession of a controlled substance.
First, we address Reavely’s unpreserved constitutional challenge to § 3583(g),
which we review de novo. See United States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010).
When a defendant does not preserve a constitutional challenge to a statute, we review the
claim for plain error, applying the Olano factors: defendants must establish (1) an error,
(2) that was plain, and (3) that affected their substantial rights. See United States v. Webb,
738 F.3d 638, 640–41 (4th Cir. 2013) (citing United States v. Olano, 507 U.S. 725, 732
(1993)). Under the reasoning outlined in a related case, any constitutional error is not plain
on appeal, so Reavely cannot meet the Olano plain error test. See United States v. Coston,
__ F.3d __, __, No. 19-4242, 2020 WL 3956685, at *4–6 (4th Cir. July 13, 2020) (holding
that the Supreme Court’s 4-1-4 split in Haymond provides a factor-based test for
unconstitutionality which § 3583(g) “likely does not meet” and, thus, that any unpreserved
constitutional error was not plain).
Second, we cannot say that Reavely’s sentence is plainly unreasonable. We will
affirm a revocation sentence so long as it is “within the prescribed statutory range and is
not plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 437–40 (4th Cir. 2006).
First, we determine whether the sentence is “unreasonable at all,” either procedurally or
substantively. United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). If it is not,
we affirm; if it is unreasonable, we determine whether it is plainly so. See United States v.
Slappy, 872 F.3d 202, 206–07 (4th Cir. 2017). We review the district court’s factual
findings for clear error. United States v. Dowell, 771 F.3d 162, 170 (4th Cir. 2014).
4 Although sentences that are within the Guidelines range, such as Reavely’s, may be
procedurally unreasonable if the court “fail[s] to adequately explain the chosen sentence,”
see Gall v. United States, 552, U.S. 38, 51 (2007), a district court has “broad discretion to
impose a particular sentence” up to the statutory maximum when revoking supervised
release, see Thompson, 595 F.3d at 547. Reavely is particularly concerned that the district
court sentenced her based on an erroneous assumption that she was involved in the
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UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 18-4879
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KATIE MARIE REAVELY,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Anderson. Bruce H. Hendricks, District Judge. (8:16-cr-00535-BHH-1)
Submitted: June 1, 2020 Decided: July 16, 2020
Before DIAZ, FLOYD, and RUSHING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jeffrey M. Johnson, Eutawville, South Carolina, for Appellant. Sherri A. Lydon, United States Attorney, Katherine Hollingsworth Flynn, Assistant United States Attorney, Jamie L. Schoen, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Katie Reavely appeals the revocation of her supervised release and her consequent
sentence of 18 months’ imprisonment. We affirm.
In the fall of 2017, Reavely began a five-year term of supervised release for her
participation in a bank fraud conspiracy. At first, Reavely was reportedly doing well on
that release. However, on April 19, 2018, she was at a friend’s home in Decatur, Georgia,
when DeKalb County police officers executed a search warrant. The home was serving as
a THC-edibles bakery business, with a plethora of signage and products. Police found
approximately 1600 grams of marijuana, 1 gram of cocaine, various baked goods
containing THC, and marijuana cigarettes. They also discovered two firearms. Video
footage in the record captures the execution of the warrant and shows Reavely in the home.
In May 2018, Reavely’s probation officer alleged four violations stemming from
this occasion: (1) criminal conduct; (2) possession of a controlled substance (1 gram of
cocaine, 1606.2 grams of marijuana, edible THC products, and marijuana cigarettes);
(3) unlawful possession of a firearm; and (4) communication and interaction with persons
known to be engaged in criminal activity. Reavely’s alleged criminal conduct under
Violation One included the following state felonies, with which she was charged: (1) three
counts of purchase, possession, manufacturing, distribution, or sale of controlled
substances; (2) two counts of possession of a firearm during the commission of or attempt
to commit a crime; and (3) possession and use of drug related objects. With respect to
Violation Four, the probation violation report noted that Reavely was suspected of doing
accounting work for the THC-edibles bakery business, and that related ledgers and receipts
2 were found in her car. At her revocation hearing, Reavely stipulated to Violations Two
and Four: possession of the various controlled substances found and being with people
known to be conducting criminal activity.
As admitted, Reavely committed a Grade A violation, meaning the court “shall
revoke” her supervised release, or at least is advised to do so. See 18 U.S.S.G.
§ 7B1.3(a)(1). She faced a Guidelines range sentence of 12 to 18 months’ imprisonment.
Additionally, Reavely’s possession of a controlled substance triggered § 3583(g),
revocation provision that stripped the sentencing judge of discretion not to revoke her
supervised release upon the finding of a drug-possession violation. See 18 U.S.C.
§ 3583(g)(1) (the court “shall revoke the term of supervised release and require the
defendant to serve a term of imprisonment not to exceed the [statutory maximum]” if the
defendant “possesses a controlled substance”). The district court revoked Reavely’s
supervised release and sentenced her at the top of the Guidelines range to 18 months’
imprisonment, to be followed by 24 months of supervised release.
On appeal, Reavely challenges for the first time the constitutionality of § 3583(g),
both facially and as applied. Reavely relies on Haymond, in which the Supreme Court
struck down a different mandatory revocation provision, § 3583(k), for violating the Fifth
and Sixth Amendments because it resembles criminal punishment for a new offense
without any trial rights, rather than a sanction for breach of the court’s trust. See generally
United States v. Haymond, 139 S. Ct. 2369 (2019). Alternatively, she argues that her
sentence should be vacated because it is plainly unreasonable, contending that it was
(1) based on a clearly erroneous finding that she was involved in the THC-edibles bakery
3 business, and (2) longer than the sentence would be if she were criminally convicted for
possession of a controlled substance.
First, we address Reavely’s unpreserved constitutional challenge to § 3583(g),
which we review de novo. See United States v. Ide, 624 F.3d 666, 668 (4th Cir. 2010).
When a defendant does not preserve a constitutional challenge to a statute, we review the
claim for plain error, applying the Olano factors: defendants must establish (1) an error,
(2) that was plain, and (3) that affected their substantial rights. See United States v. Webb,
738 F.3d 638, 640–41 (4th Cir. 2013) (citing United States v. Olano, 507 U.S. 725, 732
(1993)). Under the reasoning outlined in a related case, any constitutional error is not plain
on appeal, so Reavely cannot meet the Olano plain error test. See United States v. Coston,
__ F.3d __, __, No. 19-4242, 2020 WL 3956685, at *4–6 (4th Cir. July 13, 2020) (holding
that the Supreme Court’s 4-1-4 split in Haymond provides a factor-based test for
unconstitutionality which § 3583(g) “likely does not meet” and, thus, that any unpreserved
constitutional error was not plain).
Second, we cannot say that Reavely’s sentence is plainly unreasonable. We will
affirm a revocation sentence so long as it is “within the prescribed statutory range and is
not plainly unreasonable.” United States v. Crudup, 461 F.3d 433, 437–40 (4th Cir. 2006).
First, we determine whether the sentence is “unreasonable at all,” either procedurally or
substantively. United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). If it is not,
we affirm; if it is unreasonable, we determine whether it is plainly so. See United States v.
Slappy, 872 F.3d 202, 206–07 (4th Cir. 2017). We review the district court’s factual
findings for clear error. United States v. Dowell, 771 F.3d 162, 170 (4th Cir. 2014).
4 Although sentences that are within the Guidelines range, such as Reavely’s, may be
procedurally unreasonable if the court “fail[s] to adequately explain the chosen sentence,”
see Gall v. United States, 552, U.S. 38, 51 (2007), a district court has “broad discretion to
impose a particular sentence” up to the statutory maximum when revoking supervised
release, see Thompson, 595 F.3d at 547. Reavely is particularly concerned that the district
court sentenced her based on an erroneous assumption that she was involved in the
unlawful bakery business. But given that Reavely was present at the THC-edibles bakery
business, admitted that she was working with her friend on a related Las Vegas venture,
and concededly possessed approximately 1600 grams of marijuana, as well as the actual
edible THC products, it was not clear error for the district court to find that Reavely was
involved in the operation. The context of Reavely’s admissions and video evidence of her
presence at the home all corroborate a finding that she was involved.
Moreover, her argument that the sentence is longer than it would have been if she
were criminally convicted for possession of a controlled substance is without merit.
Reavely was sentenced for two violations of supervised release, not for possession of a
controlled substance. Revocation sentences are “first and foremost considered sanctions
for the defendant’s ‘breach of trust’—his ‘failure to follow the court-imposed conditions’
that followed his initial conviction—not ‘for the particular conduct triggering the
revocation as if that conduct were being sentenced as new federal criminal conduct.’” See
Haymond, 139 S. Ct. at 2386 (Breyer, J., concurring in the judgment) (quoting U.S.S.G.
ch. 7, pt. A, intro. cmt. 3(b) (Nov. 2018)).
5 We therefore affirm the district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before this
Court and argument would not aid the decisional process.
AFFIRMED