UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4587
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
WILLIE DOUGLAS MASSEY,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., Chief District Judge. (1:00-cr-00038-WO-1)
Submitted: April 30, 2013 Decided: May 8, 2013
Before WILKINSON and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Noah Clements, THE CLEMENTS FIRM, Washington, D.C., for
Appellant. Ripley Rand, United States Attorney, Anand P.
Ramaswamy, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Douglas Massey appeals from the twenty-month
sentence imposed after the district court revoked his supervised
release. Massey was sentenced to two concurrent terms of 112
months of imprisonment and three years of supervised release
following a conviction for one count of possession of a firearm
by a convicted felon (“Count One”), in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2) (2006), and one count of possession of
an unregistered firearm (“Count Three”), in violation of 26
U.S.C. § 5861(d) (2006). The twenty-month revocation sentence
was comprised of six months related to Count One of the original
judgment of conviction and fourteen months related to Count
Three of the original judgment, to be run consecutively.
On appeal, Massey argues that his original judgment
did not include two concurrent terms of supervised release and
that, even if it had, revocation was mandatory under 18 U.S.C.A.
§ 3583(g) (West Supp. 2012) for both in 2011—at the time of his
first revocation of supervised release. He therefore contends
that there was not an additional eighteen months of supervised
release available for Count Three. The Government counters that
the law at the time of Massey’s original sentencing required
supervised release terms to be run concurrently for each count
of conviction receiving a sentence of over one year, that the
court is permitted to impose consecutive sentences for violation
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of supervised release, and that the court retained its ability
to impose a sentence for Count Three at the 2011 and 2012
revocation sentencings.
Massey failed to object in the district court on the
grounds that he asserts on appeal. Therefore, his claim is
reviewed for plain error. See United States v. Bennett, 698
F.3d 194, 199 (4th Cir. 2012), cert. denied, 133 S. Ct. 1506
(2013). We will affirm a sentence imposed after revocation of
supervised release if it is not plainly unreasonable. United
States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010). The
first step in this review requires a determination of whether
the sentence is unreasonable. United States v. Crudup, 461 F.3d
433, 438 (4th Cir. 2006). “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) (quoting Crudup, 461 F.3d at 439)
(applying “plainly unreasonable” standard of review for
probation revocation). Only if the sentence is procedurally or
substantively unreasonable does the inquiry proceed to the
second step of the analysis to determine whether the sentence is
plainly unreasonable. Crudup, 461 F.3d at 438-39.
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
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advisory policy statement range based upon Chapter Seven of the
Sentencing Guidelines and the 18 U.S.C. § 3553(a) (2006) factors
applicable to supervised release revocation. See 18 U.S.C.
§ 3583(e) (2006); Crudup, 461 F.3d at 438-40. A 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. Crudup, 461 F.3d at 440.
“A court need not be as detailed or specific when imposing a
revocation sentence as it must be when imposing a
post-conviction sentence, but it still must provide a statement
of reasons for the sentence imposed.” Thompson, 595 F.3d at 547
(internal quotation marks omitted).
Here, Massey contends that his sentence was
procedurally unreasonable because he was sentenced to two terms
of imprisonment that were to run consecutively instead of
concurrently. We conclude that the district court committed no
procedural error in imposing its sentence. The Government
correctly notes that at the time of Massey’s original sentencing
in 2000, the Sentencing Guidelines were mandatory and the court
was required to impose a term of supervised release on every
count that carried a sentence of more than one year. See U.S.
Sentencing Guidelines Manual § 5D1.1(a) (1999). Further, a
review of the sentencing transcript reveals that the court
intended a term of supervised release to follow each count.
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Where a defendant is sentenced to multiple terms of
imprisonment at the same time, the district court may order that
the sentences run concurrently or consecutively upon revocation
of supervised release. 18 U.S.C. § 3584(a) (2006); see also
United States v. Johnson, 138 F.3d 115, 118-19 (4th Cir. 1998)
(“[W]e hold that the district court had the authority to impose
consecutive sentences upon Johnson when it revoked his
supervised release.”). In determining whether the terms will
run concurrently or consecutively, the court must consider the
§ 3553(a) factors. 18 U.S.C. § 3584(b) (2006).
Here, not only did Massey fail to object to the
computation of his sentence at the second revocation sentencing
currently on review, he also did not object to the district
court’s reimposition of an eighteen-month term of supervised
release on Count Three at the 2011 revocation sentencing. Much
of Massey’s argument pins itself to the contention that the
court erred in assessing the second term of supervised release
at the 2011 revocation. However, Massey did not object at the
time or note an appeal from the judgment order. He cannot now
attempt to argue error by the district court in 2011 when he sat
on his rights at the time and failed to appeal.
Moreover, the district court complied with the
statutory requirements and explicitly stated that it considered
the §§ 3553 and 3583 factors in determining Massey’s sentence.
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As its reasoning for imposing the chosen sentence, the court
cited the seriousness of Massey’s own admission of distribution
of crack cocaine eight days after he began his term of
supervised release, Massey’s consistent positive tests for
cocaine throughout the supervision process, the close proximity
of the violation to his release, and the substantial need to
protect the public and deter Massey and others similarly
situated. In light of the district court reasoning and the
highly deferential standard of review, we conclude that the
district court did not err in imposing its sentence as the
sentence was neither procedurally nor substantively
unreasonable, much less plainly so.
We therefore affirm the district court’s order
revoking supervised release and imposing a term of imprisonment.
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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