United States v. Willie Massey

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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