By Sarah Saint

On May 20, 2015, the Fourth Circuit issued a published opinion in the criminal case U.S. v. Wynn, affirming the district court’s judgment. Anthony Wynn was convicted of drug offenses and sentenced to imprisonment followed by supervised release. Wynn violated the conditions of his release by possessing marijuana. The district court considered Wynn’s prior drug offenses when determining the grade of these possession violations, which Wynn argued was against the United States Sentencing Commission’s advisory policy statements for violations of probation and supervised release (the “policy statements”). The Fourth Circuit held that the district court did not err by using Wynn’s prior convictions to select the violation grade and accordingly affirmed the district court’s judgment.

The Marijuana Possessions and Revocation of Supervised Release

In 2003 Wynn was sentenced to a 150-month imprisonment, followed by a five-year supervised release, after being convicted of conspiracy to distribute and possession with intent to distribute under 21 U.S.C. §§ 846 and 841(a)(1). The conditions of the supervised release included refraining from unlawful use of controlled substances and submitting to drug testing.  After Wynn began his supervised release, his probation officer alleged Wynn had violated these conditions, including possession of marijuana on six occasions. Wynn admitted to these possessions and the district court found Wynn had violated the terms of his supervision, revoking his supervised release.

The probation officer used Wynn’s prior drug convictions to determine that his marijuana possessions were Grade B violations and punishable by between twenty-one and twenty-seven months imprisonment. Wynn argued that the marijuana possessions were Grade C violations and that the probation officer could not use his prior drug convictions in determining the violation grade under the policy statement. Because these are Grade C violations, Wynn argued for between eight and fourteen months’ imprisonment. The district court rejected Wynn’s argument and found the acts of possession constituted Grade B violations. The district court then sentenced Wynn to a term of twenty-four months imprisonment.

Standard of Review

Wynn only challenged the procedural calculation of the grade and thus the sentencing range. The Fourth Circuit reviewed the district court’s judgment de novo because properly applying policies is a question of law. The Court considered whether the district court correctly determined that the marijuana possessions were Grade B violations, or if they were actually Grade C violations as Wynn argued.

Grade B vs. Grade C Violations

Under U.S.S.G. § 7B1.1(a), Grade B violations are appropriate when the conduct constitutes an offense punishable by a term of imprisonment exceeding one year. Grade C violations are appropriate when the conduct constitutes an offense punishable by a term of imprisonment of one year or less. Under 21 U.S.C. § 844(a), drug possession offenses by a non-recidivist are punishable by a term of imprisonment of one year or less. However, drug possession offenses by a recidivist are punishable by a term of imprisonment greater than one year.

Wynn’s Arguments Against Using Prior Offenses Are Unpersuasive

Wynn argued that the Court should use 21 U.S.C. § 851(a)(1) to hold that when determining imprisonment for supervised release violations, a court cannot consider a defendant’s prior criminal history unless the government files notice. However, the Court did not find this persuasive and determined that this statute only applies to sentencing after a guilty plea in a trial and in immigration proceedings.  Further, the purpose of a supervised release revocation hearing is to determine the breach of trust committed by the defendant by considering the context. Accordingly, the Court determined the government could use Wynn’s prior convictions in selecting the violation grade.

Wynn also argued that, under U.S.S.G. § 7B1.1 application notes, the violation grade should be based only on conduct committed during supervised release. However, the application notes state that the court should consider all of the defendant’s conduct. The Court determined the application notes, then, suggest all conduct affects the violation grade.

The Fourth Circuit Affirmed the Decision of the District Court

Because the district court did not err in selecting Grade B for the supervised release violation based on Wynn’s prior convictions, the Fourth Circuit affirmed the district court’s judgment.

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