United States v. Patterson

• Decision Date: 24 April 2020
• Docket Number: No. 18-4402,18-4402
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Michael James PATTERSON, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

957 F.3d 426

UNITED STATES of America, Plaintiff - Appellee,

v.Michael James PATTERSON, Defendant - Appellant.

No. 18-4402

United States Court of Appeals, Fourth Circuit.

Argued: January 28, 2020

Decided: April 24, 2020

ARGUED: Jared Paul Martin, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee. ON BRIEF: Anthony Martinez, Federal Public Defender, Charlotte, North Carolina, Joshua B. Carpenter, Appellate Chief, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant. R. Andrew Murray, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before NIEMEYER, AGEE, and RICHARDSON, Circuit Judges.

AGEE, Circuit Judge:

Michael Patterson appeals the revocation of his supervised release and the sentence imposed. On review, we conclude that the district court did not violate Patterson's due process rights when it failed to specify the evidence underlying its finding that he had violated his release conditions, given that the basis of the court's conclusion was evident from the record. We further conclude that the court did not abuse its discretion in finding Patterson had indeed failed to comply with those conditions. We therefore affirm the district court's revocation of Patterson's supervised release.

As to the imposition of the revocation sentence, we hold that the district court procedurally erred by failing to acknowledge its consideration of Patterson's nonfrivolous arguments in favor of a lower sentence. We therefore vacate the sentence and remand for resentencing.

I.

In 2000, the district court sentenced Patterson to 175 months' imprisonment and three years' supervised release after he pled guilty to conspiracy to possess with intent to distribute cocaine and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Following the end of his term of imprisonment, the court revoked his supervised release for felony possession of drugs on jail premises, sentencing him to twenty-one months' imprisonment and an additional three years' supervised release. After Patterson tested positive for cocaine on six occasions, the court modified the release conditions to include fifteen days' intermittent confinement, to be served on the weekends at the Gaston County, North Carolina Jail.

In September and November 2017, the probation officer filed a set of revocation petitions which altogether asserted eight violations. The pertinent ones are Grade C Violations One (use of cocaine) and Two (failure to appear for drug testing), as well as Grade A Violations Five (possession of heroin with intent to sell and distribute) and Seven (possession of Xanax with intent to sell and distribute).

At the revocation hearing, Patterson admitted to Violations One and Two. The court then heard evidence concerning Violations Five and Seven,¹ which stemmed from an incident in which Patterson's cellmate at the Jail overdosed on a combination of drugs not long after Patterson's arrival in their cell.

We highlight the testimony of three Government witnesses that are particularly relevant for the purposes of this appeal. Danny Lee Clifton, a detention officer, testified that Patterson self-surrendered for his intermittent confinement a day late because he had been in the hospital, later noted for treatment of constipation. After he arrived, jail officers performed a pat-down and search, which did not yield any contraband. (Officers do not typically perform a body cavity search during intake and did not conduct one then.)

Patterson's cellmate, John Edward Perry, testified that Patterson entered the cell after lockdown around 11:00pm. According to Perry, the two discussed Perry's narcotics usage. Patterson then removed from his body cavity a blue latex glove containing what appeared to be about twenty Xanax pills, oxycodone, and two bags of heroin. He told Perry that he wanted to sell the drugs to have money for his commissary account, to which Perry responded by offering to put Patterson in touch with others to facilitate these sales. Patterson subsequently gave Perry two Xanax pills and a bag filled with a powder that Perry presumed to be heroin. Perry testified that he took the pills, then "folded up a little piece of playing card and scooped [the powder] up and snorted it with that straw that was found in there." J.A. 93. He lost consciousness shortly after ingesting the Xanax

and powder.

Scott Randall, another detention officer, testified that shortly before 4:00am, he found Perry collapsed and unresponsive over the cell toilet and called for medical assistance. Perry was transported to a hospital for treatment, where a drug test was administered.² While medical personnel attended to Perry, Officer Randall instructed Patterson to wait in the common area. As Officer Clifton observed, video footage showed Patterson entering "the toilet area that you can't see on the video," remaining there for "a couple minutes," then returning to the common area. J.A. 57.

After Perry was transported to the hospital, Officer Clifton searched the cell and found a bag on Perry's bunk. Field tests determined that the bag contained less than a tenth of a gram of an opiate-based powder,³ and also contained a playing card rolled into a straw. Officers did not find a blue latex glove or any other contraband in the cell, including a packet of heroin that Perry claimed Patterson had hidden in Perry's deodorant cap.

About a week after his return from the hospital, Perry was interviewed on separate occasions by two Jail officers about the incident. He reported that Patterson had revealed the drugs after entering the cell and subsequently offered Perry Xanax and heroin. At the revocation hearing, Perry testified that he made these statements in the hopes that he would not be charged with possession of drugs on jail premises.

In turn, Patterson called three witnesses. Two jail employees testified that after Perry's overdose, Patterson passed a drug test. Further, a strip search of all "inmates that may have been connected to the incident"—specifically, Patterson and three other newly-processed inmates with drug possession charges—failed to yield any contraband. J.A. 183.

Finally, Dr. Daniel Buffington, an expert witness called to evaluate Perry's medical report, testified that the hospital staff who treated Perry after his overdose described him as "lucid." J.A. 197. During that time, Perry told staff that he took "Zantac

"⁴ at 8:00pm the night before. J.A. 196. (However, Perry testified he didn't "remember telling them that." J.A. 109.) Dr. Buffington observed that it was possible that Perry had consumed Xanax earlier in the evening and heroin later.

The court then heard the parties' arguments about whether Patterson had in fact possessed Xanax and heroin with intent to distribute. The Government acknowledged that the only direct evidence linking Patterson to the drugs was Perry's testimony but argued that Perry was credible because he did not have a cellmate or any previous charges of drug possession on jail premises yet overdosed the night Patterson was assigned to his cell. Further, the Government contended, Patterson had the motive and time to sneak drugs into the Jail because they would make his confinement "a little easier," J.A. 219, as well as the opportunity to dispose of them in the common area toilet while jail staff were attending to Perry.

Patterson argued that Perry was not credible for a number of reasons. According to Patterson, it was unlikely he could have removed the glove from his body cavity after being treated for constipation. Perry also had the opportunity to obtain the drugs from another inmate prior to 11:00pm lockdown—and, for that matter, closer to 8:00pm, the time he told hospital staff he had ingested them. And in this vein, Perry's contention that he did not recall telling hospital staff that he had ingested drugs at 8:00pm conflicted with his medical records to the contrary. Further, by Perry's own admission, he hoped to avoid a possession charge by naming Patterson as the source of the drugs. And finally, according to Patterson, the physical evidence discredited Perry's testimony: jail personnel did not find the blue glove or drugs Perry described, and any theory proposing Patterson attempted to dispose of the drugs in the bathroom amounted to "speculation." J.A. 224.

The district court observed that the case presented a close call but concluded that the Government had met its burden of proving by a preponderance of the evidence that Patterson had committed Violations Five and Seven.⁵ Based on these findings, as well as Patterson's admissions to Violations One and Two, the court concluded Patterson had violated the terms of his supervised release and revoked it.

In imposing a revocation sentence, the district court observed Patterson had a criminal history category of VI and classified Patterson's original offense as a Class A felony. Given that Violations Five and Seven were Grade A violations, the revocation petition calculated an initial Sentencing Guidelines range of fifty-one to sixty months' imprisonment. But the court made an adjustment to account for Patterson's service of twenty-one months in prison for a prior revocation, which resulted in a range cap of thirty-nine months.⁶

Patterson asked the court to depart or vary downward from a Guidelines sentence. In support, counsel argued that Patterson had a strong employment history, observing that he had been employed "doing janitorial work and, upon release, [could] do the same type of work." J.A. 256. Further, according to counsel, "he ha[d] strong family support" and "want[ed] to get out of custody as soon as possible [in order to] spend time with [his] grandchildren." J.A. 256–57. Finally, counsel contended, Patterson had acknowledged his substance abuse issues but was adamant...