United States v. Jackson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 07-4425

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HAROLD STEVEN JACKSON, a/k/a Ears,

Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (8:02-
cr-00396-PJM-1)

Submitted: August 29, 2008 Decided: October 3, 2008

Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

James Wyda, Federal Public Defender, Lisa W. Lunt, Assistant
Federal Public Defender, Sherri Keene, Staff Attorney, Greenbelt,
Maryland, for Appellant. Deborah A. Johnston, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Harold Steven Jackson appeals the twenty-four month

sentence the district court imposed upon finding Jackson violated

the terms of his supervised release. Counsel submitted a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), averring

there are no meritorious issues for appeal, but suggesting this

court should consider whether: (1) Jackson’s due process rights

were violated when, upon his arrest, he was not shown the arrest

warrant; and (2) the district court erred in determining the grade

of the violation. In his pro se supplemental brief and the

amendments thereto, Jackson elaborates on these arguments and

further maintains the length of time between his initial detention

and the violation hearing was unreasonable. We have carefully

reviewed the record in this case, and conclude there is no

reversible error. Accordingly, for the reasons set forth below, we

affirm the district court’s judgment.

Approximately one year after Jackson began his term of

supervised release, Jackson’s probation officer filed a petition on

supervised release, alleging Jackson committed the following two

violations: (1) that on May 1, 2006, Jackson threw a handgun from

his person while fleeing from the police (“First Violation”); and

(2) that on May 14, 2006, Jackson burglarized the home of his ex-

girlfriend, Selene Proctor (“Second Violation”). The probation

officer subsequently amended the petition to add a third violation:

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that on June 6, 2006, “Ms. Proctor filed a second Temporary Peace

Order against Mr. Jackson for harassment, stalking, trespass,

malicious destruction of property, and threats of violence during

the period of May 2006 up until the present” (“Third Violation”).

In addition to the supervised release violation, the

Government also charged Jackson with being a felon in possession of

a firearm (Case No. PJM-06-306) (“substantive charge”). Jackson

pled guilty to the substantive charge, and in February 2007, he was

sentenced to eighty-seven months’ imprisonment for that offense.

In April 2007, the district court conducted a separate

hearing on the supervised release revocation, at which Jackson

admitted the conduct underlying the First Violation. To establish

that Jackson committed the Second and Third Violations, the

Government proffered evidence from Jackson’s sentencing hearing in

the substantive charge.

The district court found Jackson committed all three

violations, and concluded the Second and Third Violations were

Grade A offenses. This, combined with a criminal history category

III, yielded a policy statement range of eighteen to twenty-four

months’ imprisonment. After considering the nature of the offense,

Jackson’s background, and the need “to deter others from acting

this way [and] to deter this defendant from acting this way,” the

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district court sentenced Jackson to twenty-four months’

imprisonment. Jackson noted a timely appeal.1

I. Alleged Violation of Due Process

As counsel acknowledges in her brief, Jackson did not

argue in the district court that the alleged failure by the police

to show Jackson the arrest warrant violated his due process rights.

Accordingly, this court’s review is for plain error. Fed. R. Crim.

P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993).

There is simply insufficient evidence in the record on

which to conclude there was any error regarding service of the

arrest warrant. Jackson neither testified regarding this issue,

nor submitted any evidence to establish he was not shown the arrest

warrant. Accordingly, on the present record, we discern no error,

let alone error that is plain.

II. Determination of Grade of Violation

Jackson next contends the district court improperly

classified the Second and Third Violations as Grade A violations.

In relevant part, pursuant to Chapter Seven of the U.S. Sentencing

1
Jackson’s attorney erroneously captioned the notice of appeal
with the case number for the substantive charge, as opposed to that
of the supervised release violation. The Government moved to
dismiss the appeal, arguing it was not timely as to the substantive
charge. Recognizing that the erroneous case number was a clerical
error, this court denied the Government’s motion.

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Guidelines (“USSG”), a Grade A violation involves conduct that:

violates federal, state, or local law; is punishable by a term of

imprisonment greater than one year; and is a crime of violence.

USSG § 7B1.1(a)(1), p.s. (2006). Application Note Two to this

policy statement provides that the term “crime of violence” is

defined by USSG § 4B1.2. USSG § 7B1.1, p.s., cmt. n.2.

Application Note One to USSG § 4B1.2 reflects that “burglary of a

dwelling” is a crime of violence. USSG § 4B1.2 cmt. n.1. Under

Maryland law, even the lowest degree burglary offense — fourth

degree burglary — is punishable by up to three years’ imprisonment.

See Md. Code Ann., Crim. Law § 6-205 (LexisNexis 2002).

The district court correctly classified the Second

Violation — burglary — as a Grade A violation. See USSG §§ 4B1.2

cmt. n.1 & 7B1.1, p.s., cmt. n.2. According to USSG § 7B1.1(b),

p.s., “[w]here there is more than one violation of the conditions

of supervision, . . . the grade of the violation is determined by

the violation having the most serious grade.” Thus, the violation

as a whole was properly graded a Grade A violation.2

III. Other Issues

We reject Jackson’s pro se claim that the hearing on the

supervised release violation was unreasonably delayed. In the

2
The fact that the State of Maryland later declined to
prosecute Jackson for the burglary offense does not alter this
result. USSG § 7B1.1, p.s., cmt. n.1.

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interim period between being charged with the violation and the

hearing, Jackson was charged with and pled guilty to a separate

substantive felon-in-possession offense. As the conduct under the

substantive charge was inextricably linked with that alleged in the

supervised release violation, there was no error in deferring

action on the violation pending resolution of the substantive

charge. As the Government noted, Jackson was already incarcerated

on that offense.

Finally, although not expressly raised by Jackson or his

counsel, because this case is before us pursuant to Anders, we have

reviewed Jackson’s sentence, and find it is not unreasonable. See

United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006).

The sentence was procedurally reasonable, id. at 438-39, as the

district court properly calculated Jackson’s sentencing range under

Chapter Seven’s policy statement, and sentenced Jackson within that

range. See United States v. Finley, 531 F.3d 288, 294 (4th Cir.

2008) (“In applying the ‘plainly unreasonable’ standard, we first

determine, using the instructions given in Gall [v. United States,

128 S. Ct. 586, 597 (2007)], whether a sentence is

‘unreasonable.’”). Moreover, the sentence was substantively

reasonable, as the district court articulated several reasons for

its choice of sentence, including Jackson’s background and the need

to deter further crime.

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 In accordance with Anders, we have reviewed the entire

record for any other meritorious issues and have found none.

Accordingly, we affirm the district court’s judgment. We require

that counsel inform Jackson, in writing, of the right to petition

the Supreme Court of the United States for further review. If

Jackson requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move in

this court for leave to withdraw from representation. Counsel’s

motion must state that a copy thereof was served on Jackson. We

dispense with oral argument because the facts and legal contentions

are adequately set forth in the materials before the court and

argument would not aid the decisional process.

AFFIRMED

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