UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4179
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTOINETTE DOMINICK SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. James A. Beaty, Jr.,
Senior District Judge. (1:00-cr-00088-JAB-1)
Submitted: October 29, 2015 Decided: November 19, 2015
Before NIEMEYER and FLOYD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Tiffany T. Jefferson,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant. Ripley E. Rand, United States Attorney, Kristin
J. Uicker, Special Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Antoinette Dominick Smith appeals the district court’s
order sentencing him to a 12-month term of imprisonment and a
48-month term of supervised release upon revocation of his prior
term of supervised release. Smith claims that his revocation
sentence exceeds the statutory maximum penalty. We affirm.
In 2000, Smith pled guilty to distribution of crack
cocaine, in violation of 21 U.S.C. § 841(a)(1) (2012) (Count 1),
and possession of a firearm during a drug trafficking offense,
in violation of 18 U.S.C. § 924(c)(1)(A)(i) (2012) (Count 4).
Smith was sentenced to 108 months’ imprisonment followed by 5
years of supervised release on Count 1 and 60 months’
imprisonment followed by 5 years of supervised release on Count
4. While the prison terms were designated as consecutive, the
terms of supervised release were to be served concurrently.
Some time after Smith began serving his term of supervised
release, Smith’s probation officer petitioned the court for
revocation of release. At his revocation hearing, Smith
admitted using cocaine and marijuana and conceded that he had
committed a Grade B violation that, combined with his criminal
history category of III, yielded a policy statement range of 8
to 14 months’ imprisonment. The court determined that Smith had
violated the conditions of his supervised release and imposed a
sentence of 12 months in prison followed by 48 months of
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supervised release. Neither party objected to the sentence.
Smith timely appeals, arguing that the aggregate of his 12-month
prison sentence and his 48-month term of supervised release
exceeds the 3-year prison term permitted for a Class B felony
under 18 U.S.C. § 3583(e)(3) (2012).
Because Smith did not object in the district court to the
sentence imposed, we review for plain error. United States v.
Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). “To satisfy
plain error review, the defendant must establish that: (1)
there is a sentencing error; (2) the error is plain; and (3) the
error affects his substantial rights.” Id. Moreover, even if
all three of these elements are satisfied, we will not cure the
error unless it “seriously affects the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal
quotation marks omitted).
Both Count 1, a Class B felony, and Count 4, a Class A
felony, originally subjected Smith to a term of supervised
release not to exceed five years. 18 U.S.C. § 3583(b)(1)
(2012); see 18 U.S.C. §§ 924(c)(1)(A)(i), 3559(a)(1), (b)(1)
(2012); 21 U.S.C. § 841(b)(1)(B) (2012); United States v. Good,
25 F.3d 218, 221 (4th Cir. 1994) (holding maximum period of
supervised release for first offender found guilty of
§ 841(b)(1)(B) offense is five years). A district court may
revoke a term of supervised release and require a defendant to
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serve in prison all or part of the term of supervised release
authorized by the original statute of conviction. 18 U.S.C.
§ 3583(e)(3). Such a defendant may not be required to serve
more than five years in prison for a Class A felony, nor more
than three years in prison for a Class B felony. Id.
In addition to imprisonment, the revoking court may impose
a new term of supervised release as part of the revocation
sentence. 18 U.S.C. § 3583(h) (2012). The length of the new
term of supervised release may not exceed the term of supervised
release authorized by the original statute of conviction, less
any term of imprisonment imposed upon revocation of supervised
release. Id.
Smith alleges that his total punishment was limited to
three years pursuant to § 3583(e)(3). Such an interpretation
ignores the phrase “in prison” in § 3583(e)(3) and would render
superfluous § 3583(h)’s direction that “[t]he length of such a
term of supervised release shall not exceed the term of
supervised release authorized by statute for the offense that
resulted in the original term of supervised release.” It is our
duty to give effect, where possible, “to every clause and word
of a statute.” United States v. Pratt, 239 F.3d 640, 648 (4th
Cir. 2001) (internal quotation marks omitted). Based on the
plain language of § 3583(e)(3) and (h), we conclude that Smith’s
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48-month term of supervised release does not exceed the maximum
penalty authorized by statute.
Accordingly, we affirm the district court’s judgment. 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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