UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5199
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PATRICK WAYNE DULA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:09-cr-00035-WO-1)
Submitted: May 20, 2010 Decided: May 24, 2010
Before WILKINSON, NIEMEYER, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sol Z. Rosen, Washington, D.C., for Appellant. Anna Mills
Wagoner, United States Attorney, Randall S. Galyon, Assistant
United States Attorney, Greensboro, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patrick W. Dula pled guilty, pursuant to a plea
agreement, to one count of possession with intent to distribute
cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C)
(2006), and one count of possession of a firearm in furtherance
of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)
(2006). The district court sentenced Dula to a total of eighty-
seven months of imprisonment and ten years of supervised
release. On appeal, Dula argues that the district court abused
its discretion in imposing a ten-year term of supervised release
on the drug count because the plea agreement and the plea
hearing colloquy pursuant to Fed. R. Crim. P. 11 only mentioned
a minimum of three years of supervised release. We affirm.
Dula did not object to the district court’s imposition
of the ten-year term of supervised release in the district
court, and we therefore review his claim under the plain error
standard of review. United States v. Lynn, 592 F.3d 572, 577
(4th Cir. 2010). To demonstrate plain error, Dula “must show
that an error (1) was made, (2) is plain (i.e., clear and
obvious), and (3) affects substantial rights.” Id.
In this case, the drug count carried a maximum of
twenty years of imprisonment and a period of at least three
years of supervised release. The statute specifying the maximum
punishment does not state a maximum term of supervised release.
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21 U.S.C. § 841(b)(1)(C); see United States v. Pratt, 239 F.3d
640, 647-48 n.4 (4th Cir. 2001) (“[A] defendant convicted under
21 U.S.C. § 841(b)(1)(C), could, in theory, receive a term of
supervised release of up to life.”). Consistent with the
statutory provision, the plea agreement stated that Dula
understood that, as to the drug count, he “shall be sentenced to
a term of imprisonment of not more than twenty years, a fine not
to exceed $1,000,000, or both. Any sentence imposing a term of
imprisonment shall impose a term of supervised release of at
least three years in addition to such term of imprisonment.”
Thus, Dula was clearly given notice in the plea agreement that
three years was the minimum term of supervised release, not the
maximum.
In accepting a guilty plea, the district court must
inform a defendant during the plea hearing of, among other
things, “any maximum possible penalty, including imprisonment,
fine, and term of supervised release.” Fed. R. Crim. P.
11(b)(1)(H). In this case, the district court conducted a
thorough colloquy with Dula that ensured he understood the
proceedings, the charges to which he was pleading guilty, and
the terms of the plea agreement. The court specifically
informed Dula that “the maximum possible penalty that could be
imposed as to Count 1 includes a term of imprisonment of not
more than 20 years, a period of supervised release of not less
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than 3 years, a fine of not more than $1 million or twice the
gross gain or loss caused by the violation, whichever is
greater, a special assessment of $100.” Dula indicated that he
understood these possible penalties.
Dula’s citation of the supervised release provisions
in the sentencing guidelines is misplaced. The guidelines
specifically provide that “[t]he term of supervised release
shall not be less than any statutorily required term of
supervised release.” U.S. Sentencing Guidelines Manual
§ 5D1.2(c) (2008). Thus, the guidelines do not limit the term
of supervised release in this case. Finally, the district
provided a reasoned explanation, based on Dula’s prior drug
convictions, supporting its decision to impose the specific term
of supervised release on the drug count.
The district court did not err in imposing the ten-
year term of supervised release on the drug count. Accordingly,
we affirm Dula’s sentence. 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
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