UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4737
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HENRY LEE CLYBURN,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:04-cr-00148-FDW-1)
Submitted: February 24, 2011 Decided: March 17, 2011
Before DUNCAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Frank A. Abrams, LAW OFFICE OF FRANK ABRAMS, PLLC, Asheville,
North Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Richard Lee Edwards, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Upon revocation of Henry Lee Clyburn’s supervised
release, which was imposed as part of his sentence for
possession of a firearm by a convicted felon, the district court
sentenced Clyburn to twenty-four months’ imprisonment and twelve
months of supervised release. Clyburn appeals this sentence,
asserting five grounds for vacatur: first, that the district
court erred in vacating an eleven-month sentence it proposed and
proceeding to address Clyburn’s request to withdraw his
admissions to certain violations of his supervised release;
second, that Clyburn’s trial counsel rendered ineffective
assistance; third, that the district court acted vindictively in
sentencing Clyburn to twenty-four months’ imprisonment; fourth,
that the twenty-four month sentence is plainly unreasonable; and
fifth, that the district court erred in imposing the additional
twelve-month term of supervised release. We affirm.
I.
Clyburn pled guilty to one count of possession of a
firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and was sentenced in November 2005 to
fifty-seven months’ imprisonment followed by three years of
supervised release. Clyburn began serving his term of
supervised release on August 7, 2009. In May 2010, Clyburn’s
2
probation officer petitioned the district court to revoke
Clyburn’s supervised release, alleging in the petition that
Clyburn had violated his supervised release by traveling to
Florida without prior authorization (violation four) and being
charged in state court with four criminal offenses: an April
2010 simple assault (violation one), aiding and abetting
(violation two), possession of marijuana (violation three), and
driving with a revoked license and giving fictitious information
to an officer (violation five). In an addendum to the petition,
the probation officer alleged that Clyburn had further violated
his supervised release by being charged in state court with
three additional criminal offenses: resisting a public officer
(violation six), lacking an operator’s license and giving
fictitious information to an officer (violation seven), and
simple assault (violation eight).
At the revocation hearing, counsel for the Government
moved to dismiss violations three and five and informed the
district court that, in exchange for Clyburn’s guilty plea to
violation one, the Government would dismiss violation two.
Clyburn’s attorney informed the district court that Clyburn
would admit violations one, four, six, seven, and eight, and the
district court found that Clyburn had violated his supervised
release. The court calculated the advisory policy statement
range at five to eleven months’ imprisonment, see U.S.
3
Sentencing Guidelines Manual (“USSG”) §§ 7B1.1(a)(3), (b), p.s.,
7B1.4(a), p.s. (2009), and heard argument from counsel,
allocution from Clyburn, and the unsworn statement of the victim
of the simple assault at issue in violation one. After
discussing relevant sentencing factors, the district court
announced a proposed sentence of eleven months’ imprisonment,
followed by twenty-five months of supervised release. As the
court was advising Clyburn of his appellate rights, Clyburn’s
counsel interrupted and informed the court that Clyburn wished
to withdraw his admissions to violations one and eight.
The district court proposed that the Government
present its evidence and admonished Clyburn that, as a result of
the withdrawal of his admission of guilt to violation one, the
agreement with the Government with respect to its dismissal of
violation two was no longer binding. The court also advised
Clyburn and ensured that he understood that it was no longer
bound by its proposed sentence and that he faced a statutory
maximum revocation sentence of twenty-four months’ imprisonment.
The Government dismissed violation eight and presented the
testimony of three witnesses pertaining to the assault at issue
in violation one. After hearing this testimony and argument
from counsel, the district court found that Clyburn committed
violations one, two, four, six, and seven and revoked his
supervised release. The court again calculated the advisory
4
policy statement range at five to eleven months’ imprisonment
and sentenced Clyburn to twenty-four months’ imprisonment
followed by twelve months of supervised release. This appeal
followed.
II.
Clyburn claims that the district erred in vacating the
eleven-month prison sentence. In Clyburn’s view, the court, by
announcing the proposed sentence of eleven months’ imprisonment,
ascertaining that no party objected to that sentence, and then
immediately thereafter advising him of his appellate rights,
imposed a revocation sentence of eleven months’ imprisonment.
Having imposed such a sentence, the court, Clyburn contends,
should have then adjourned the revocation proceeding and erred
by vacating the eleven-month sentence and proceeding to address
his request to withdraw his admissions to violations one and
eight.
Because Clyburn did not object to these actions in the
district court, we review this claim for plain error.
See Puckett v. United States, 129 S. Ct. 1423, 1428-29 (2009).
To prevail under this standard, Clyburn must establish that an
error was made, is plain, and affected his substantial rights.
Id. at 1428-29. In the sentencing context, an error affects
substantial rights if, absent the error, a lower sentence would
5
have been imposed. United States v. Knight, 606 F.3d 171, 178
(4th Cir. 2010).
We conclude that Clyburn fails to make the required
showing. His assertion that the district court imposed an
eleven-month prison sentence is simply incorrect. Rather, the
court merely announced a proposed sentence of eleven months’
imprisonment. That the court announced a proposed sentence and
then made a seriatim announcement of Clyburn’s appellate rights
does not, without more, amount to the imposition of that
proposed sentence. Because the district court did not impose an
eleven-month prison term, Clyburn’s claim that the district
court erred in vacating that term and proceeding to address his
request to withdraw his admissions to violations one and eight
is without merit. Clyburn thus fails to show error — plain or
otherwise — by the district court, and this claim therefore
fails.
III.
Next, Clyburn suggests that trial counsel rendered
ineffective assistance. Claims of ineffective assistance of
counsel generally are not cognizable on direct appeal. United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather, to
allow for adequate development of the record, a defendant must
bring his claim in a 28 U.S.C.A. § 2255 (West Supp. 2010)
6
motion. Id. An exception exists where the record conclusively
establishes ineffective assistance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006).
To succeed on his claim, Clyburn must show that
(1) trial counsel’s performance was constitutionally deficient
and (2) such deficient performance was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687-88, 692 (1984). To satisfy the
performance prong, Clyburn must demonstrate that trial counsel’s
performance fell below an objective standard of reasonableness
under “prevailing professional norms.” Id. at 688. The
prejudice prong is satisfied if Clyburn can demonstrate that
“there is a reasonable probability that, but for [trial]
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
Clyburn asserts that, by informing the district court
that he objected to and wished to withdraw his admissions to
violations one and eight, trial counsel rendered ineffective
assistance by “sell[ing] him out to” the district court.
Clyburn, however, fails to explain how counsel’s act of
informing the district court of Clyburn’s position on those
violations amounts to performance falling below an objective
standard of reasonableness under prevailing professional norms.
Moreover, he does not suggest that, but for counsel’s error, the
result of the revocation hearing would have been different.
7
Accordingly, because ineffective assistance of counsel does not
conclusively appear on this record, this claim is not cognizable
in this appeal.
IV.
Clyburn also claims that the district court’s decision
to impose the twenty-four month prison sentence was vindictive.
More specifically, he claims that the district court’s
sentencing decision was motivated by a desire to punish him for
expressing his unhappiness with the eleven-month prison
sentence. “[I]t is beyond doubt that a sentence enhanced,
whether before or after commencement of service, because of the
vindictiveness or other plainly improper motive of the trial
court would be fundamentally unfair and . . . den[ies] the
defendant due process.” United States v. Lundien, 769 F.2d 981,
987 (4th Cir. 1985). Generally, however, judicial
vindictiveness will not be presumed, and the burden remains with
the defendant to prove actual vindictiveness. See Alabama v.
Smith, 490 U.S. 794, 799 (1989).
We find no evidence in the record that the district
court acted vindictively in sentencing Clyburn to the twenty-
four month prison term. After Clyburn withdrew his admissions
to violations one and eight, the district court ensured that he
understood that the eleven-month sentence was only a proposed
8
sentence it was not bound to impose. Thus, any expectation
Clyburn may have had as to the length of his revocation sentence
had not crystallized such that it would be unfair to defeat it
by allowing the court to hear the Government’s evidence on those
violations Clyburn belatedly contested. See Lundien, 769 F.2d
at 987. Moreover, as the district court explained, it imposed
the twenty-four month sentence not to punish Clyburn for
withdrawing his admissions, but because that sentence was
appropriate in light of relevant 18 U.S.C. § 3553(a) (2006)
sentencing factors applicable to revocation sentences.
While Clyburn is correct that the district court based
its sentencing decision in part on his behavior at the
revocation hearing, a district court may, in imposing a
revocation sentence, properly consider the defendant’s
characteristics and history. 18 U.S.C. § 3553(a)(1),
18 U.S.C.A. § 3583(e) (West 2006 & Supp. 2010). Here, the
district court did just that, making note of Clyburn’s criminal
history and failure to show remorse by admitting his guilt on
violation one, and the court’s assessment that Clyburn initially
agreed to plead guilty to the violation only because he expected
that doing so would result in a favorable sentence and not
because he was guilty of the violation. Because the record
demonstrates valid reasons for the court’s imposition of the
twenty-four month sentence, there is no basis from which to
9
presume that the court acted with vindictiveness or any other
improper motive in imposing the sentence. See Smith, 490 U.S.
at 799. Accordingly, this claim fails.
V.
Clyburn also summarily claims that the twenty-four
month revocation sentence is unreasonable. This court will
affirm a sentence imposed after revocation of supervised release
if it is within the applicable statutory maximum and is not
“plainly unreasonable.” United States v. Crudup, 461 F.3d 433,
437, 439-40 (4th Cir. 2006). In determining whether a
revocation sentence is “plainly unreasonable,” we first assess
the sentence for unreasonableness, “follow[ing] generally the
procedural and substantive considerations that we employ in our
review of original sentences.” Id. at 438. A revocation
sentence is procedurally reasonable if the district court
considered the Guidelines’ Chapter 7 advisory policy statements
and the 18 U.S.C. § 3553(a) factors that it is permitted to
consider in a supervised release revocation case. Id. at 440.
A revocation sentence is substantively reasonable if the
district court stated a proper basis for concluding the
defendant should receive the sentence imposed, up to the
statutory maximum. Id. Only if a sentence is found
procedurally or substantively unreasonable will we “then decide
10
whether the sentence is plainly unreasonable.” Id. at 439
(emphasis omitted). A sentence is “plainly” unreasonable if it
is clearly or obviously unreasonable. Id.
Clyburn fails to show that his twenty-four month
prison sentence is plainly unreasonable. It is undisputed that
the sentence does not exceed the applicable statutory maximum of
two years’ imprisonment, see 18 U.S.C. § 3559(a)(3) (2006);
18 U.S.C.A. § 3583(e)(3), and Clyburn has not asserted or
demonstrated any claim of procedural or substantive
unreasonableness in the sentence. Accordingly, this claim
likewise fails.
VI.
Finally, Clyburn claims that the district court erred
in imposing the additional twelve-month term of supervised
release. Because Clyburn did not object to the imposition of
the additional term of supervised release at the revocation
hearing, we review this claim for plain error. See Puckett,
129 S. Ct. at 1428-29.
Section 3583(h) of Title 18 of the United States Code
limits the maximum term of supervised release imposed upon
revocation to “the term of supervised release authorized by
statute for the offense that resulted in the original term of
supervised release, less any term of imprisonment that was
11
imposed upon revocation of supervised release.” 18 U.S.C.A.
§ 3583(h). Clyburn’s gun possession conviction is a Class C
felony, see 18 U.S.C. §§ 924(a)(2), 3559(a)(3) (2006), and three
years is the statutory maximum term of supervised release
authorized for such an offense, see 18 U.S.C.A. § 3583(b)(2).
Applying the requirement in § 3583(h) that any term of
imprisonment imposed upon revocation be subtracted from the
statutorily-authorized term of supervised release, the district
court here was permitted to impose up to a one-year term of
supervised release upon revocation. That is exactly the
sentence the district court imposed. This sentence complies
with the applicable statutes and, contrary to Clyburn’s
argument, the relevant policy statement, see USSG § 7B1.3(g)(2),
p.s.
VII.
Accordingly, we affirm the district court’s judgment
and deny as moot Clyburn’s motion to expedite our decision. 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
12