United States v. Seiber

Decision Date20 March 2013
Docket NumberNo.12-2523,12-2523
PartiesUNITED STATES OF AMERICA v. RONALD SEIBER Appellant
CourtU.S. Court of Appeals — Third Circuit

NOT PRECEDENTIAL

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Criminal No. 2:05-cr-00010-001)

District Judge: Honorable Alan N. Bloch

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 19, 2013

Before: SMITH, GREENAWAY, JR., and VAN ANTWERPEN, Circuit Judges.

OPINION OF THE COURT

VAN ANTWERPEN, Circuit Judge.

Ronald Sieber ("Sieber")1 appeals his sentence from the United States District Court for the Western District of Pennsylvania for violating the terms of his supervisedrelease. The District Court found that Sieber, who admitted to testing positive for marijuana on two occasions during his supervised release, had violated the condition that he not possess any controlled substances nor commit any federal, state, or local crime. After reviewing Sieber's prior criminal record, the District Court concluded his conduct constituted a Grade B violation under Section 7B1.1(a) of the United States Sentencing Guidelines ("Guidelines"). Sieber's supervised release was therefore revoked and he was sentenced to twenty-four months less one day imprisonment. For the reasons that follow, we will affirm.

I. Facts

Because we write solely for the parties, we recite only those facts necessary for disposition. Sieber pled guilty to bank robbery, in violation of 18 U.S.C. § 2113(a). In August, 2005, he was sentenced to seventy-seven months imprisonment, followed by three years of supervised release. As part of the conditions of his supervised release, Sieber was required to, inter alia, refrain from committing another federal, state, or local crime. Additionally, as a result of his history of drug use, which included a prior drug conviction,2 Sieber was to refrain from using, purchasing, possessing, distributing, or administering any narcotics or controlled substances, except as prescribed by a physician. (See Appendix "App." at A38.)

Shortly after Sieber began serving his supervised release, on August 11, 2011, the Probation Office filed a Petition charging Sieber with violating certain conditions of hisparole.3 Included in those violations were the commission of two state crimes, for which Sieber served short state sentences after pleading guilty to them. On January 5, 2012, the Probation Office filed a Supplemental Petition alleging additional violations.4 A revocation hearing was then scheduled for May 10, 2012. Before the hearing, however, the Probation Office filed a second Supplemental Petition, alleging additional violations.5 A warrant was then issued for Sieber's arrest.

At the May 10, 2012 revocation hearing, the District Court revoked Sieber's supervised release and sentenced him to twenty-four months less one day imprisonment, to be followed by twelve months of additional supervision. The District Court based this sentence on the ground that Sieber's two positive tests for marijuana were circumstantial evidence of simple possession, in violation of 21 U.S.C. § 844(a).6 Because Sieber'srecord contained a prior drug conviction, the District Court determined Sieber's simple possession charge could be punishable by a term of imprisonment exceeding one year. As a result, the District Court found Sieber had committed a Grade B violation under Guidelines § 7B1.1(a) and he was sentenced accordingly.7 Sieber then timely appealed.8

II. Discussion

Under 18 U.S.C. § 3583(e)(3), courts may revoke a term of supervised release and require a defendant "to serve in prison all or part of the term of supervised release" if the court "finds by a preponderance of the evidence that the defendant violated a condition of supervised release." Revocation is required when the court concludes that a defendant, while on supervised release, possessed a controlled substance. Id. § 3583(g)(1).

In determining whether a defendant, while on supervised release, possessed a controlled substance, we have held that courts may use positive drug tests, or admission of drug use, as "circumstantial evidence of possession of a controlled substance for purposes of 18 U.S.C. § 3583(g)." United States v. Blackston, 940 F.2d 877, 891 (3d Cir. 1991). It is not necessary for a defendant to be charged with or found guilty of drug possession in order for the district court to make such a finding. See United States v. Poellnitz, 372 F.3d 562, 566 (3d Cir. 2004).

When a defendant violates his supervised release, the court should determine whether the defendant's conduct constituted a Grade A, Grade B, or Grade C violation, and also take into account the provisions of 18 U.S.C. § 3583(e).9 It was under thisauthority the District Court concluded Seiber possessed marijuana in violation of his supervised release, revoked his supervised release, and sentenced him.

Sieber makes several arguments on appeal: (1) that he was never given notice his positive drug tests could be deemed a possession offense, let alone a felony offense; (2) that the government failed to file an information, in accordance with 21 U.S.C. § 851, notifying him his prior drug conviction would be used to enhance his sentence; (3) that the leniency commonly afforded to offenders who possess small amounts of marijuana is inconsistent with the District Court's decision to use the sixteen-year-old prior drug conviction to elevate the simple possession violation here to a Grade B violation; and (4) that the two positive drug tests cannot constitute Grade B violations.10 Sieber also argues that his sentence was procedurally unreasonable. For the reasons that follow, none of Sieber's arguments is persuasive.

A. Notice of "Possession" Violation

Sieber complains the petitions alleging violations of supervised release did not contain allegations that he possessed a controlled substance, nor did they put him on notice that any such possession could constitute a felony offense. Sieber claims the only factual support for his having violated the condition that he "not commit another Federal, state, or local crime" are the Pennsylvania convictions for retail theft and harassment. Additionally, Sieber claims none of the petitions contained any reference as to how his sixteen-year-old prior drug conviction could be considered a felony offense, and thus, a Grade B violation.

Sieber's arguments miss the point. The violation at issue is Sieber's positive drug tests for marijuana on August 2, 2011 and February 23, 2012, which the District Court found established Sieber had committed simple possession of a controlled substance under Section 3538(g). At the time of his original sentence, Sieber was given written notice of the conditions of his supervised release. Included in those conditions were a prohibition of Sieber using or possessing narcotics or controlled substances. And although it is true that the original petition did not expressly state Sieber had violated the terms of his release by possessing narcotics or controlled substances, the Second Supplemental Petition clearly did. (See App. at 40-41, 44-45.) As a result, Sieber cannot contend that he was unaware he may be found to have violated his supervised release by being in possession of marijuana. And he cannot contend that he was unaware of the evidence the government would use to prove that charge—his positive drug tests. Both the charge and the facts the government would use to prove it were plainly stated inthe original and supplemental petitions for revoking his supervised release. That information was sufficient for Sieber to prepare his defense, and, thus, complied with his right to notice. See Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973) (probationer is entitled to "notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decision maker, and a written report of the hearing" (citing Morrissey v. Brewer, 408 U.S. 471, 487 (1972)); United States v. Sistrunk, 612 F.3d 988, 992 (8th Cir. 2010) ("For notice to be effective, it need only assure that the defendant understands the nature of the alleged violation."); FED. R. CRIM. P. 32.1(b)(2)(A). Moreover, as discussed above, the District Court had authority to determine Sieber had committed a possession offense even though he had not been convicted or charged with such an offense. See Poellnitz, 375 F.3d at 566.

Additionally, Sieber alleges he was not given notice that any of his violations of his supervised release would constitute Grade B violations. In support, Sieber points to the "Violation Work Sheet," prepared by the Probation Office, which states Sieber's most serious violation was only a Grade C. (See Supplemental Appendix "Supp. App." at 1.) Sieber claims he was unfairly surprised when the District Court determined his most serious violation constituted a Grade B violation, not merely a Grade C violation.

The Government correctly points out that Sieber has cited no authority to support his claim that the District Court was somehow bound by the Grade determination made by the Probation Office; nor does he cite any authority for the proposition that he was somehow entitled to advance notice of the eventual, final Grade for his supervised releaseviolations. This is not surprising, as, post-Booker, even the Guidelines themselves are wholly advisory and afford district courts wide latitude. See United States v. Colon, 474 F.3d 95, 100 (3d Cir. 2007). Moreover, U.S.S.G. §§ 7B1.1-7B1.5 speak in terms relative to the court's authority to revoke supervised release and assign an appropriate sentence. See U.S.S.G. §§ 7B1.1-7B1.5. What is more, even the ranges set out in those sections are merely advisory. See United States v. Schwegel, 126 F.3d 551, 551 (3d Cir. 1997). In consequence, the fact that the Probation Office determined the relative Grade of Sieber's violations differently...

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