United States v. Coston

• Decision Date: 13 July 2020
• Docket Number: No. 19-4242,19-4242
• Citation: 964 F.3d 289
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Calvin Teko COSTON, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

964 F.3d 289

UNITED STATES of America, Plaintiff - Appellee,

v.Calvin Teko COSTON, Defendant - Appellant.

No. 19-4242

United States Court of Appeals, Fourth Circuit.

Submitted: June 1, 2020

Decided: July 13, 2020

Geremy C. Kamens, Federal Public Defender, Patrick L. Bryant, Appellate Attorney, Alexandria, Virginia, Wilfredo Bonilla, Jr., Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Norfolk, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Alan M. Salsbury, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, Virginia, for Appellee.

Before DIAZ, FLOYD, and RUSHING, Circuit Judges.

Affirmed by published opinion. Judge Floyd wrote the opinion in which Judge Diaz and Judge Rushing joined.

FLOYD, Circuit Judge:

During his third chance on supervised release, Defendant-Appellant Calvin Teko Coston failed his third drug test in a one-year period. That slip-up triggered a revocation provision, 18 U.S.C. § 3583(g), that restricted the district court's discretion to continue his supervised release. Moreover, presented with new supervised release violations and previous violations for which it had continued disposition, the district court sentenced him to an above-Guidelines revocation sentence of 36 months’ imprisonment.

After Coston's sentencing, the Supreme Court held that a different mandatory revocation provision, 18 U.S.C. § 3583(k), was unconstitutional in an as-applied challenge. See United States v. Haymond , ––– U.S. ––––, 139 S. Ct. 2369, 2373, 204 L.Ed.2d 897 (2019) (Breyer, J., concurring in the judgment). Relying on Haymond , Coston appeals the revocation of his supervised release, arguing that 18 U.S.C. § 3583(g) similarly violates his Fifth and Sixth Amendment rights. Coston also asserts that his prison sentence is plainly unreasonable. For the following reasons, we hold that any constitutional error is not plain at the time of this appeal and affirm Coston's sentence.

I.

In 2006, Coston pleaded guilty to one count of possession of cocaine base with intent to distribute and one count of firearm possession in furtherance of a drug trafficking offense. He was sentenced to 235 months’ aggregate imprisonment, but successfully moved to reduce his sentence on the drug charge, shaving 55 months off his sentence. Coston was also sentenced to two 5-year terms of supervised release, to be served concurrently.

Coston began supervised release in November 2014. Although Coston was admitted to community college, he asserts that he had transportation difficulties impacting both his education and employment. Suffering from a drug addiction, Coston missed urine screenings and tested positive for marijuana. In April 2015, he was pulled over by police, but he did not immediately stop his car. He states that he kept driving to find a better-lit location due to a recent police shooting. Once pulled over, the police found marijuana in the car. Coston was convicted for eluding police, driving on a suspended license and expired registration, and marijuana possession. He was sentenced to 6 months in jail. Financially strapped and unemployed, Coston also began buying items on Craigslist with counterfeit currency, which he asserts he received unwittingly. Coston was convicted for obtaining money by false pretenses and forging bank notes, and he was sentenced to 5 years’ imprisonment, with 4 years and 6 months suspended, as well as supervised probation.

In 2016, Coston's federal probation officer petitioned to revoke his supervised release, alleging that he (1) committed a crime (referring to both recent state criminal cases); (2) failed to follow instructions, including by failing to appear for urine screenings; (3) failed to notify the probation officer of a change in residence; and (4) possessed marijuana. At his January 2017 revocation hearing, Coston admitted to each of these violations. The advisory Guidelines range was 18 to 24 months’ imprisonment. After hearing Coston's mitigation, including both that he had not been eligible for the most in-depth drug treatment program in the Bureau of Prisons (BOP) because of his firearm conviction and that he had not been able to enter any treatment programs while in state custody, the district court sentenced him at the low end, to 18 months in prison. The district court also recommended to the BOP that Coston learn a vocational skill, receive a medical evaluation, and participate in drug treatment. After imprisonment, he would go back on supervised release to serve the remainder of his original 5-year term: 42 months of supervised release.

That second 42-month term of supervised release began in March 2018. Again, Coston started off on the right foot, gaining employment with his new welding skills. However, by June 2018, probation alleged new violations: that Coston (1) failed to complete his drug treatment program; (2) failed to report for three drug tests; (3) failed to timely notify his probation officer of an arrest;¹ (4) twice failed to report to his reentry program; (5) possessed marijuana and cocaine, as determined by a positive drug test; and (6) failed to register with local police as a convicted felon. By the time of his hearing, Coston had registered with local police, which the district court "accept[ed]." J.A. 61. Coston admitted to each of the other violations, but not to possession of cocaine—only marijuana.

In mitigation, Coston testified as to various circumstances that had undermined his ability to comply with drug treatment and attend reentry meetings. He said that it had been a "wake-up call," J.A. 77, and asked for a second chance. The district court found that Coston violated his supervised release, but it did not revoke his supervision; instead, it continued disposition on these violations:

What I would suggest we do is that these violations are of record, they are stipulated to, the Court has accepted them and found that he is in violation, but that we continue disposition on these violations pending any further violations and give Mr. Coston the chance to say what he means and mean what he says, and for him to know that with the Court, actions speak louder than words. He just under oath said that he was going to follow all the instructions and follow the supervised release ....

If he truly wants an opportunity to avoid further incarceration and get his life back on track, now is his opportunity to do so.

J.A. 81–82.

During this third chance to successfully complete supervised release, Coston suffered serious traumatic events: his wife had a heart attack

, requiring open-heart surgery, and his stepson was shot. As Coston explains it, he returned to marijuana to cope with these events. In October and November of 2018, his probation officer filed new addendums, alleging that Coston: (1) possessed marijuana, as determined by two positive drug tests, and as admitted; (2) missed two urine screens; and (3) missed two monthly reports.

In March 2019, the district court held a hearing regarding both these new violations and the prior violations for which disposition had been suspended. Coston stipulated to the three new violations, including the possession violation. Typically, a judge has broad discretion as to whether to terminate, continue, revoke, or otherwise modify supervised release. See generally 18 U.S.C. § 3583(e). However, Coston's stipulation to a third positive drug test in a one-year period triggered 18 U.S.C. § 3583(g), the "Mandatory Revocation for Possession of Controlled Substance or Firearm or for Refusal to Comply With Drug Testing" provision. Subsection 3583(g) provides that the court "shall revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3)," if the defendant:

(1) possesses a controlled substance in violation of the condition set forth in subsection (d);

(2) possesses a firearm, as such term is defined in section 921 of this title, in violation of Federal law, or otherwise violates a condition of supervised release prohibiting the defendant from possessing a firearm;

(3) refuses to comply with drug testing imposed as a condition of supervised release; or

(4) as a part of drug testing, tests positive for illegal controlled substances more than 3 times over the course of 1 year.

18 U.S.C. § 3583(g) (emphasis added). The district court correctly acknowledged at the outset of Coston's hearing that § 3583(g)(4) would apply based on his three failed drug tests.

Importantly, there is one statutory exception to mandatory revocation when a defendant has failed drug tests. As argued by Coston at the hearing, the court could have ordered inpatient drug treatment rather than revoke Coston's supervised release. See 18 U.S.C. § 3583(d) ("The court shall consider whether the availability of appropriate substance abuse treatment programs ... warrants an exception in accordance with [U.S.S.G.] guidelines from the rule of section 3583(g) when considering any action against a defendant who fails a drug test."); see also U.S.S.G. § 7B1.4 cmt. application n.6. Coston explained through counsel that he had been using drugs since he was eleven years old, had never received inpatient treatment, and really wanted the help. But the court rejected inpatient treatment as a possibility, explaining that Coston had "squandered his opportunities," and that he was not "entitled to go to the [chosen] inpatient program when the system has programs just as good or better." J.A. 107.

The government asked for a Guidelines range sentence of 18 to 24 months’ imprisonment; defense counsel requested at least a downward variance, arguing that these newest violations were much less serious than his prior violations. Defense counsel also explained the mitigating circumstances of Coston's familial traumas. Expressing that "[t]here are always going to be human problems," the court "assume[d...