770 F.3d 1090 (4th Cir. 2014), 13-4683, United States v. Ward

Docket Nº:13-4683
Citation:770 F.3d 1090
Opinion Judge:BARBARA MILANO KEENAN, Circuit Judge:
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. GEORGE A. WARD, Defendant - Appellant
Attorney:Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. Robert Edward Bradenham, II, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee. Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Richard J. Colgan, Assistant...
Judge Panel:Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.
Case Date:November 03, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

Defendant appealed his sentence for violating the conditions of his supervised release. Defendant was sentenced to 20 months' imprisonment, the mandatory minimum term required by a former version of the supervised release statute, 18 U.S.C. 3583(g). The court concluded that the district court correctly applied the former version of Section 3583(g), because that version of the statute was in... (see full summary)

 
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Page 1090

770 F.3d 1090 (4th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

GEORGE A. WARD, Defendant - Appellant

No. 13-4683

United States Court of Appeals, Fourth Circuit

November 3, 2014

Argued: September 19, 2014.

Appeal from the United States District Court for the Eastern District of Virginia, at Newport News. (4:94-cr-00070-HCM-1). Henry Coke Morgan, Jr., Senior District Judge.

ARGUED:

Frances H. Pratt, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant.

Robert Edward Bradenham, II, OFFICE OF THE UNITED STATES ATTORNEY, Newport News, Virginia, for Appellee.

ON BRIEF:

Michael S. Nachmanoff, Federal Public Defender, Alexandria, Virginia, Richard J. Colgan, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant.

Dana J. Boente, Acting United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria, Virginia; Katharina J. Rienks, Third Year Law Student, WILLIAM & MARY LAW SCHOOL, Williamsburg, Virginia, for Appellee.

Before WILKINSON, DUNCAN, and KEENAN, Circuit Judges.

OPINION

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BARBARA MILANO KEENAN, Circuit Judge:

George A. Ward appeals from the district court's judgment sentencing him to a term of 20 months' imprisonment for violating the conditions of his supervised release. This sentence was the mandatory minimum term required by a former version

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of the supervised release statute, 18 U.S.C. § 3583(g), which Congress amended in 1994 to eliminate the statute's mandatory minimum sentencing provision. The amended statute was enacted after Ward committed the underlying offenses for which he was originally convicted, but before he engaged in the conduct that led to the revocation of his supervised release.

On appeal, Ward argues that the district court erred in failing to apply the amended version of Section 3583(g). Ward also argues that his mandatory minimum sentence violates the Sixth Amendment, as construed in Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), because the sentence was imposed based on factual findings made by a judge by a preponderance of the evidence, rather than by a jury under the standard of beyond a reasonable doubt.

Upon our review, we conclude that the district court correctly applied the former version of Section 3583(g), because that version of the statute was in effect when Ward committed the underlying crimes. We further conclude that Alleyne, which affords certain constitutional protections when a mandatory minimum sentence is at issue in a criminal trial, does not apply in the context of supervised release revocation proceedings. Accordingly, we affirm the district court's judgment.

I.

In December 1994, Ward pleaded guilty to several felony charges, including three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § § 922(g)(1) and 924, two counts of distribution of crack cocaine, in violation of 21 U.S.C. § 841, and one count of use of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). The district court sentenced Ward to a prison term of 260 months, followed by a five-year period of supervised release. Among other things, the conditions of Ward's supervised release prohibited him from illegally possessing a controlled substance.

Ward's prison term ultimately was reduced by the district court to 200 months,1 but the court expressly left intact the original duration and conditions of Ward's supervised release. When Ward was released from prison in October 2010, he began his five-year term of supervised release.

In April 2013, the government filed a petition in the district court seeking to revoke Ward's supervised release. The government alleged that Ward violated his conditions of release by testing positive for cocaine on four occasions, and positive for marijuana on two occasions.2 The government later supplemented its revocation petition, alleging three additional instances in which Ward had tested positive for cocaine.

At a hearing on the government's petition, Ward admitted that he had possessed cocaine and marijuana on numerous occasions during his supervised release term. At the conclusion of the evidence, the district court revoked Ward's supervised release,

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finding that Ward had violated the conditions of his release.

In determining Ward's sentence, the district court first addressed which version of 18 U.S.C. § 3583(g) applied. Under the version of Section 3583(g) in effect when Ward committed the underlying crimes, Ward was subject to a mandatory minimum sentence of one-third of his supervised release term, because his violation was based on his illegal possession of controlled substances. See 18 U.S.C. § 3583(g) (1993 ed.) (" If the defendant is found by the court to be in the possession of a controlled substance, the court shall terminate the term of supervised release and require the defendant to serve in prison not less than one-third of the term of supervised release." ). Thus, in this case, application of former Section 3583(g) required a sentence of at least 20 months' imprisonment based on the original five-year term of supervised release.

Congress amended former Section 3583(g) in September 1994, eliminating the mandatory minimum sentencing provision. See Violent Crime Control and Law Enforcement Act of 1994, Pub. L. 103-322, § 110505(3), 108 Stat. 1796. Ward argued that he should be sentenced under the amended statute, which was in effect both when the court imposed Ward's original sentence and when he violated the supervised release conditions.

The district court held that it was bound by the former version of the statute. The court sentenced Ward to the mandatory minimum prison term of 20 months, stating, " I'm not imposing 20 months based on the fact that I have the discretion to do that for this violation, I'm imposing it because the [c]ourt believes it's mandatory. And if it wasn't mandatory I wouldn't impose a sentence that severe." Ward filed a timely notice of appeal.

II.

We first address Ward's argument that the district court erred in applying the former version of Section 3583(g) when imposing the sentence for his supervised release violation. Ward contends that the former version of the statute was not applicable because the statute was amended before he originally was sentenced and before he committed the acts in violation of his conditions of release. We review de novo this issue of law. See United States v. Fareed, 296 F.3d 243, 245 (4th Cir. 2002).

A.

We conclude that under the Supreme Court's decision in Johnson v. United States, 529 U.S. 694, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), the district court properly applied former Section 3583(g) in determining Ward's revocation sentence. In Johnson, the Court addressed whether a provision of former Section 3583 that had not been enacted at the time of the petitioner's underlying offense was applicable in his supervised release revocation proceeding, when his conduct in violation of the conditions of release occurred after the statute was amended.3 529 U.S. at 697-702. The Court held that the defendant was subject to the sentencing provisions of the pre-amendment statute in effect when the initial offense was committed. Id. at 701-02.

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In reaching its conclusion in Johnson, the Court expressly rejected the argument that revocation and reimprisonment should be characterized as punishment for a violation of the conditions of supervised release. Id. at 700-01. Instead, the Court held that " postconviction penalties relate to the original offense." Id. at 701.

In light of this conclusion, the Court considered whether Congress intended that the amended version of Section 3583 apply retroactively. The Court analyzed this question under the well-established presumption that legislation will not be given retroactive effect unless Congress clearly manifested such an intent. Id. The Court noted the absence of any clear congressional intent, and accordingly held that amended Section 3583(h) " applies only to cases in which that initial offense occurred after the effective date of the amendment." Id. at 702.

In the present case, Ward committed his underlying offenses between December 1993 and June 1994, before Congress amended former Section 3583 in September 1994. Thus, absent clear congressional intent to the contrary, the former version of Section 3583(g) was controlling in Ward's supervised release revocation proceeding. See id.

There is no evidence that Congress intended...

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