UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4104
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DALE PATRICK VERSHER,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:10-cr-00098-AWA-TEM-1)
Submitted: November 10, 2015 Decided: November 16, 2015
Before WILKINSON and KEENAN, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Geremy C. Kamens, Acting Federal Public Defender, Frances H.
Pratt, Rodolfo Cejas, II, Assistant Federal Public Defenders,
Alexandria, Virginia, for Appellant. Dana J. Boente, United
States Attorney, Lisa R. McKeel, Assistant United States
Attorney, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dale Patrick Versher appeals the district court’s order
revoking supervised release and imposing a 24-month term of
imprisonment to be followed by 15 years’ supervised release.
Versher contends that one of the conditions of supervised
release he was convicted of violating was unconstitutionally
vague and that the court plainly erred in imposing a 15-year
term of supervised release. For the reasons that follow, we
affirm.
In 2010, Versher, a convicted rapist, pled guilty to
failing to register as a sex offender as required by the Sex
Offender Registration and Notification Act (“SORNA”), see 18
U.S.C. § 2250(a) (2012). The district court sentenced Versher
to 36 months’ imprisonment, to be followed by a 15-year term of
supervised release for which the court imposed several
conditions of supervision. Relevant to this appeal, Standard
Condition 3 required Versher to “answer truthfully all inquiries
by the probation officer and follow the instructions of the
probation officer.” (J.A. 40). 1
Versher was released from custody and began serving his
term of supervision in March 2013. Later that year, the
1
“J.A.” refers to the joint appendix filed by the parties
on appeal.
2
district court revoked Versher’s supervised release, because he
violated various conditions of supervision. The court
sentenced Versher to 60 days’ imprisonment, to be followed by 15
years’ supervised release.
Versher’s new term of supervision began on January 3, 2014.
The district court once again revoked Versher’s supervision on
February 5, 2015, finding that Versher violated several
conditions of supervision, including Standard Condition 3. The
court found that Versher violated Standard Condition 3 by
failing to comply with the probation officer’s oral instructions
to notify him about new romantic relationships. Versher argues
that this instruction was impermissibly vague, because it was
not clear what constituted a “romantic relationship” and
therefore the condition violated his due process rights. 2
We review for abuse of discretion a district court’s
judgment revoking supervised release and imposing a term of
imprisonment. United States v. Padgett, 788 F.3d 370, 373 (4th
Cir.), cert. denied, ___ S. Ct. ___, 2015 WL 5937870 (U.S. Nov.
2Versher does not dispute the district court’s findings
that he violated other conditions of supervised release, or that
his supervised release could be revoked solely on the basis of
those other violations. However, he argues that he was
prejudiced by the district court’s finding that he violated
Standard Condition 3, because the district court’s decision to
sentence him above the Policy Statement range to the statutory
maximum term of imprisonment was based in part on this
violation.
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9, 2015) (No. 15-6499). We review de novo constitutional due
process claims. United States v. Legree, 205 F.3d 724, 729 (4th
Cir. 2000).
A statute violates due process of law if it “either forbids
or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and
differ as to its application.” Connally v. Gen. Constr. Co.,
269 U.S. 385, 391 (1926); United States v. Morison, 844 F.2d
1057, 1070 (4th Cir. 1988). The same principles apply to
conditions of supervised release. See United States v. Paul,
274 F.3d 155, 166 (5th Cir. 2001) (“Restrictions on an
offender’s ability to interact with particular groups of people
. . . must provide ‘fair notice’ of the prohibited conduct.”);
United States v. Schave, 186 F.3d 839, 843 (7th Cir. 1999) (“A
condition of supervised release is unconstitutionally vague if
it would not afford a person of reasonable intelligence with
sufficient notice as to the conduct prohibited.”).
“[C]ategorical terms can provide adequate notice of prohibited
conduct where there is a commonsense understanding of what
activities the categories encompass.” Paul, 274 F.3d at 167.
Our review of the record and the parties’ briefs convinces us
that the probation officer’s instructions were not impermissibly
vague and that the district court did not abuse its discretion
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in finding that Versher violated Standard Condition 3 by failing
to comply with those instructions.
Next, Versher challenges the 15-year term of supervised
release imposed by the district court. Because Versher did not
object to his sentence before the district court, our review is
for plain error. United States v. Webb, 738 F.3d 638, 640-41
(4th Cir. 2013). To satisfy the plain error standard, Versher
must show (1) an error; (2) that is clear and obvious; (3) that
affects substantial rights; and (4) that “seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.” Id. (alteration in original).
Under U.S. Sentencing Guidelines Manual § 5D1.2(b)(2)
(2010), a defendant who is convicted of a “sex offense” may
receive up to a lifetime term of supervised release. In United
States v. Collins, 773 F.3d 25 (4th Cir. 2014), cert. denied,
135 S. Ct. 1868 (2015), this Court held, in accordance with a
recent clarifying amendment to the Guidelines, that “failing to
register as a sex offender under SORNA is not a ‘sex offense’
for purposes of the Guidelines.” 773 F.3d at 32; see USSG
§ 5D1.2 cmt. n.1 (2014). Thus, the term of supervised release
under the Guidelines for a defendant, like Versher, who is
convicted of failing to register is the statutory minimum of
five years. Collins, 773 F.3d at 32; see USSG § 5D1.2 cmt. n.6.
Notably, although Collins clarified that the Guidelines term of
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supervised release for defendants convicted of failing to
register is five years, the statutory range remains the same—
five years to life. See 18 U.S.C. § 3583(k) (2012).
Versher argues that the district court plainly erred by
imposing a supervised release term in excess of the five years
advisory Guidelines range, and by failing to explain the reason
for the upward variance. Even assuming that the district court
erred by failing to take into account the advisory Guidelines
range in imposing or explaining the upward variance, and that
the error is clear or obvious, Versher cannot show a “non-
speculative basis in the record to conclude that the district
court would have imposed a lower [supervised release term] . . .
but for the error.” United States v. McLaurin, 764 F.3d 372,
388 (4th Cir. 2014) (internal quotation marks omitted), cert.
denied, 135 S. Ct. 1842 (2015).
Finally, Versher argues that the district court erred in
failing to subtract from his 15-year supervised release term the
terms of imprisonment imposed for his past and present
supervised release violations. The length of a new term of
supervised release may “not exceed 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 imposed upon revocation of supervised
release.” 18 U.S.C. § 3583(h) (2012). However, § 3583(h)’s
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subtraction rule does not apply where a statute authorizes a
maximum supervised release term of life. United States v.
Crowder, 738 F.3d 1103, 1104-05 (9th Cir. 2013); United States
v. Cassesse, 685 F.3d 186, 188-91 (2d Cir. 2012); United States
v. Rausch, 638 F.3d 1296, 1302-03 (10th Cir. 2011).
Accordingly, we affirm the district court’s order. 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
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