United States v. Maurice Person

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 29, 2018
• Docket: 17-4610
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 17-4610

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MAURICE DEVEL PERSON, a/k/a Reese,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, District Judge. (4:07-cr-00030-FL-1)

Submitted: May 15, 2018 Decided: May 29, 2018

Before GREGORY, Chief Judge, WYNN, Circuit Judge, and HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Terry F. Rose, Smithfield, North Carolina, for Appellant. Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, First Assistant United States Attorney, Phillip A. Rubin, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Maurice Devel Person appeals the district court’s judgment revoking his

supervised release and imposing a sentence of 55 months in prison. Based on the

evidence presented at his revocation hearing, the district court found that he violated his

supervised release conditions by possessing more than 20 pounds of marijuana with

intent to distribute, and his conduct was a Grade A violation under U.S. Sentencing

Guidelines Manual § 7B1.1(a)(1)(A)(ii) (2016). On appeal, Person contends that the

district court erred in finding that he violated his supervised release conditions, and

alternatively, that his actual conduct only constituted a Grade C violation. We affirm.

We review a district court’s decision to revoke a defendant’s supervised release

for abuse of discretion. United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015)

(citation omitted). We review a district court’s factual findings underlying a revocation

for clear error. Id. (citations omitted). “Under the clear error standard, we will only

reverse if ‘left with the definite and firm conviction that a mistake has been committed.’”

United States v. Savage, 885 F.3d 212, 225 (4th Cir. 2018) (citation omitted). To revoke

supervised release, a district court need only find a violation of a supervised release

condition by a preponderance of the evidence. See 18 U.S.C. § 3583(e)(3) (2012). “This

standard requires only that ‘the existence of a fact’ be ‘more probable than its

nonexistence.’” Padgett, 788 F.3d at 374 (citation omitted).

“We will not disturb a district court’s revocation sentence unless it falls outside

the statutory maximum or is otherwise ‘plainly unreasonable.’” Id. at 373 (citation

omitted). In determining whether a revocation sentence is unreasonable, we are informed

2 by the same procedural and substantive considerations that guide our review of original

sentences, but we strike a more deferential appellate posture. Id. (citations omitted). The

district court retains broad discretion to impose a term of imprisonment up to the

statutory maximum. Id. (citations omitted). In exercising such discretion, the district

court “is guided by the Chapter Seven policy statements in the federal Guidelines manual,

as well as the statutory factors applicable to revocation sentences under 18 U.S.C.

§§ 3553(a), 3583(e).” United States v. Webb, 738 F.3d 638, 641 (4th Cir. 2013). We

presume that a sentence within the policy statement range is reasonable. Id. at 642.

Grade A violations include conduct that constitutes 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)(ii). A controlled substance offense includes

a felony offense under federal or state law that prohibits the possession of a controlled

substance with intent to distribute. USSG §§ 4B1.2(b), 7B1.1 cmt. n.3. The grade of a

supervised release violation does not depend on any criminal charges or whether the

defendant is convicted but rather is based on the defendant’s actual conduct. USSG

§ 7B1.1 cmt. n.1; see United States v. Wynn, 786 F.3d 339, 343-44 (4th Cir. 2015).

We have reviewed the record and conclude that the district court did not err in

finding, by a preponderance of the evidence, that Person violated his supervised release

conditions, or in finding that his actual conduct constituted a Grade A violation.

3 Accordingly, we affirm the district court’s judgment. 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