United States v. Steven Bell

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4052

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

STEVEN WAYNE BELL,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. W. Earl Britt, Senior
District Judge. (5:01-cr-00013-BR-1)

Submitted: July 11, 2013 Decided: July 24, 2013

Before MOTZ and DAVIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Steven Wayne Bell appeals the district court’s

judgment revoking his supervised release and sentencing him to

fourteen months’ imprisonment. On appeal, counsel has filed a

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

stating that there are no meritorious issues for appeal but

questioning whether the district court committed procedural

sentencing error by considering an impermissible factor when

fashioning Bell’s sentence. Bell has filed pro se supplemental

briefs echoing counsel’s claim and raising additional issues.

The Government has declined to file a response brief. After a

careful review of the record, we affirm.

We will affirm a revocation sentence that falls within

the prescribed statutory range and is not “plainly

unreasonable.” United States v. Crudup, 461 F.3d 433, 437 (4th

Cir. 2006). In making this determination, we first consider

whether the sentence is unreasonable, using the same general

analysis employed in review of original sentences. See id. at

438. “This initial inquiry takes a more deferential appellate

posture concerning issues of fact and the exercise of discretion

than reasonableness review for [G]uidelines sentences.” United

States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal

quotation marks and citations omitted). Only if the sentence is

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procedurally or substantively unreasonable will we consider

whether it is “plainly” so. Id. at 657.

While the sentencing court “ultimately has broad

discretion to revoke its previous sentence and impose a term of

imprisonment up to the statutory maximum,” Crudup, 461 F.3d at

439 (internal quotation marks omitted), the court is required to

consider the Guidelines’ Chapter Seven policy statements and the

factors applicable to revocation sentences under 18 U.S.C.

§§ 3553(a), 3583(e) (2006). Chapter Seven provides that a

revocation sentence should “sanction primarily the defendant’s

breach of trust.” U.S. Sentencing Guidelines Manual Ch. 7, Pt.

A(3)(b) (2012).

Both Bell and his counsel question whether Bell’s

sentence is plainly unreasonable because the district court

improperly relied upon the need to promote respect for the law

in sentencing Bell. Because Bell did not raise this issue in

the district court, this claim is subject to review for plain

error. See United States v. Bennett, 698 F.3d 194, 199-200 (4th

Cir. 2012), cert. denied, 133 S. Ct. 1506 (2013). To meet this

standard, Bell must demonstrate that an error occurred, the

error was plain, and the error affected his substantial rights.

United States v. Olano, 507 U.S. 725, 732 (1993). Even if these

requirements are met, we will decline to correct the error

unless it “seriously affects the fairness, integrity or public

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reputation of judicial proceedings.” Id. (internal quotation

marks and alteration omitted).

While § 3583(e) requires a district court to consider

most § 3553(a) factors in imposing a revocation sentence, it

specifically omits the factors listed in § 3553(a)(2)(A),

including the need to promote respect for the law.

Accordingly, a district court is not permitted to impose a

revocation sentence based primarily on these considerations.

See Crudup, 461 F.3d at 439. Although the district court made a

single reference to the need to promote respect for the law, we

conclude that this brief statement does not render Bell’s

sentence unreasonable. Rather, viewing the revocation hearing

as a whole, we conclude the court designed the sentence

primarily to sanction Bell’s breach of the trust the court

placed in him at an earlier revocation hearing when it provided

him an additional chance to comply with his mandated treatment

program. The court also properly considered the need to deter

further misconduct in imposing Bell’s sentence. We therefore

find no violation of § 3583(e).

In his pro se supplemental brief, Bell asserts that he

was not provided adequate notice of the revocation hearing to

permit him to prepare and to obtain necessary witnesses.

Because he did not raise an objection on this basis in the

district court, we review the issue for plain error. See Olano,

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507 U.S. at 732. Due process requires that a defendant charged

with a supervised release violation be afforded adequate notice

of the charges to permit him to prepare a defense. United

States v. Chatelain, 360 F.3d 114, 121 (2d Cir. 2004); see Fed.

R. Crim. P. 32.1(b)(2); Morrissey v. Brewer, 408 U.S. 471, 489

(1972) (minimum due process requirements for parole revocation);

United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992)

(recognizing that due process requirements apply to revocations

of supervised release). However, our review of the record does

not support Bell’s timeline of events or suggest that Bell was

deprived of adequate opportunity to present his defense. Cf.

United States v. Cotroneo, 89 F.3d 510, 513-14 & n.7 (8th Cir.

1996) (concluding that district court did not violate due

process by failing to comply with Rule 32.1, nor did it abuse

its discretion in denying continuance, when defendant received

detailed revocation petition eight days before hearing and

Government’s evidence one day before hearing). Moreover, even

had an error occurred, we conclude, based on Bell’s description

of the allegedly omitted testimony, that this testimony would

not have impacted his revocation proceedings and, thus, its

omission did not violate his substantial rights.

We have reviewed the remaining issues raised in Bell’s

pro se supplemental briefs and find them without merit. Insofar

as Bell attempts to challenge counsel’s ineffectiveness in

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advising him to admit that he violated the conditions of his

supervised release, his claim is not cognizable on direct

appeal, as no ineffectiveness appears conclusively on the

record. See United States v. Benton, 523 F.3d 424, 435 (4th

Cir. 2008). Nor does the record contain evidence sufficient to

undermine the validity of his admission to the use of a

controlled substance or the court’s findings that he violated

his supervised release terms. See United States v. Copley, 978

F.2d 829, 831 (4th Cir. 1992) (indicating that the district

court need only find a supervised release violation by a

preponderance of the evidence).

While Bell asserts that his supervision should not

have been revoked based on the violations he committed,

revocation was mandatory due to the district court’s finding

that he used an illicit substance. See 18 U.S.C. § 3583(g)(1)

(2006) (mandating revocation when district court finds defendant

has possessed controlled substance); United States v. Clark, 30

F.3d 23, 26 (4th Cir. 1994) (concluding that, where the district

court finds intentional or culpable use of controlled substance,

finding of possession necessarily follows, requiring application

of § 3583(g)). Absent evidence to the contrary, the court is

presumed to have considered and rejected the exception to this

rule. See United States v. Hammonds, 370 F.3d 1032, 1038-39

(10th Cir. 2004); United States v. Crace, 207 F.3d 833, 835-36

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(6th Cir. 2000). Moreover, the court acted well within its

discretion in revoking Bell’s supervision based on his repeated

failure to comply with the treatment programs mandated by his

probation officer and the terms of his supervised release.

In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgment. This court

requires that counsel inform Bell, in writing, of the right to

petition the Supreme Court of the United States for further

review. If Bell 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 Bell.

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