United States v. Shaw

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. NORMAN SHAW, JR., Defendant-Appellant.

No. 22-3251

United States Court of Appeals, Tenth Circuit

May 10, 2023

(D.C. No. 2:05-CR-20073-JWL-1) (D. Kan.)

Before MATHESON, BRISCOE, and EID, Circuit Judges.

ORDER AND JUDGMENT ^[*]

SCOTT M. MATHESON, JR. CIRCUIT JUDGE

Norman Shaw, Jr.,appearing pro se, appeals his sentence and the district court's denial of his post-sentencing motion for relief under Rule 35(a) of the Federal Rules of Criminal Procedure. The district court found that Mr. Shaw had committed a Grade B violation of his supervised release and sentenced him to 21 months of imprisonment. Mr. Shaw contends the district court abused its discretion in finding his conduct amounted to a Grade B violation, arguing his offense was not punishable by a term of imprisonment exceeding one year. Exercising jurisdiction under 18 U.S.C. § 1291, we affirm.^[1]

I. BACKGROUND

A. Legal Background

When a district court imposes a sentence for violation of supervised release, it "is required to consider the policy statements contained in Chapter 7 of the Sentencing Guidelines ...." United States v. Ortiz-Lazaro, 884 F.3d 1259, 1262 (10th Cir. 2018). Chapter Seven of the United States Sentencing Guidelines establishes three grades-A, B, and C-of supervised release violations, each having sentencing consequences. U.S.S.G. § 7B1.1(a).

Grade B encompasses "conduct constituting any [] federal, state, or local offense punishable by a term of imprisonment exceeding one year." Id. § 7B1.1(a)(2). Grade C includes "a federal, state, or local offense punishable by a term of imprisonment of one year or less" or "a violation of any other condition of supervision." Id. § 7B1.1(a)(3).^[2] For a defendant with a criminal history category of VI, like Mr. Shaw, the Guidelines recommend a prison term of 21-27 months for a Grade B violation and 8-14 months for a Grade C violation. Id. § 7B1.4.

Under federal law, the penalty for simple possession of a controlled substance carries a "term of imprisonment of not more than 1 year." 21 U.S.C. § 844(a). But if the defendant has a prior conviction that "has become final" "for any drug, narcotic, or chemical offense chargeable under the law of any State . . . he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years." Id. This "recidivist simple possession" is thus "punishable as a federal felony under the Controlled Substances Act." Carachuri-Rosendo v. Holder, 560 U.S. 563, 567-68 (2010) (quotations omitted).

B. Revocation Proceedings

In 2006, Mr. Shaw pled guilty to (1) entering a bank with the intent to rob it and (2) bank robbery, both in violation of 18 U.S.C. § 2113(a). He was sentenced to two concurrent prison terms of 165 months followed by three years of supervised release. Mr. Shaw began supervised release on February 23, 2022.

On October 18, 2022, the United States Probation Office petitioned the district court for an arrest warrant and revocation of Mr. Shaw's supervised release. The petition was based, among other things, on positive drug tests for amphetamine, methamphetamine, and cocaine. It reported that he had submitted 15 positive drug tests since his supervised release began, and it alleged these tests establish Grade B violations for possessing a controlled substance in violation of the federal Controlled Substances Act, 21 U.S.C. § 844(a). The petition explained that his state drug conviction under Missouri law from 2002 made his simple drug possession during supervised release eligible for a prison term exceeding a year under federal law.^[3]

At the final revocation hearing, a probation officer testified about the probation violations, stating that Mr. Shaw had signed an admission of usage form on three occasions when he had tested positive for drug use. Counsel for Mr. Shaw conceded that his client had signed the documents but contended the Government had not "prove[d] up" the 2002 Missouri conviction, so classifying the violation as Grade B was not appropriate. ROA, Vol. III at 67-68. The district court offered to continue the hearing. Counsel stated that Mr. Shaw's "belief is that that conviction does exist, but that because it is 20 years old, it should not be a proper enhancement here." Id. at 68. The court asked whether Mr. Shaw would "stipulate and agree that [the Missouri] conviction did occur." Mr. Shaw, addressing the court, said, "Yes, 2002; it happened in 2002." Id. at 69.

The district court concluded that Mr. Shaw had violated the terms of his supervised release. It determined his violation was a Grade B because, based on his prior Missouri drug conviction, using a controlled substance while on supervised release was punishable by a prison term exceeding one year under 21 U.S.C. § 844(a). Based on the Grade B violation and a criminal history category of VI, the court revoked Mr. Shaw's supervised release and sentenced him to 21 months in prison followed by 12 months of supervised release. Mr. Shaw filed a notice of intent to appeal his sentence.

Proceeding pro se, Mr. Shaw also filed a motion in district court under Federal Rule of Criminal Procedure 35(a) to correct his sentence and a motion for relief from judgment under Federal Rule of Civil Procedure 60(b).^[4] In both motions, he argued that the district court erred in classifying his supervised release violation as Grade B rather than Grade C. He also moved to amend his Rule 35(a) motion to include a claim that the district court should have applied the "categorical approach" to determine whether his Missouri drug offense was a "prior [drug] conviction" under 21 U.S.C. § 844(a). ROA, Vol. I at 200-02.

The district court denied Mr. Shaw's motions. It explained that Fed. R. Crim. P. 35(a) is limited to relief from a calculation error or obvious mistake and that Fed.R.Civ.P. 60(b) is inapplicable to criminal cases. The court also held that Mr. Shaw's arguments failed on the merits because his Missouri conviction qualified as a prior conviction under 21 U.S.C. § 844(a) to make his drug possession during supervised release eligible for a sentence in excess of one year. The court thus again concluded his offense was a Grade B violation.

II. DISCUSSION

Mr. Shaw challenges the procedural reasonableness of his sentence. He argues the district court erred in determining his supervised release violation was Grade B. He advances three arguments:

(1) The district court erred in relying on his Missouri conviction because it did not make the Government prove the offense. Aplt. Br. at 4.

(2) The district court erred in relying on his Missouri conviction because it was "expired" and "over 15 years old" and therefore should not have been used to determine the category of his supervised release violation. Id. at 2-3.

(3) His Missouri conviction "is not a controlled substance offense under the Federal Controlled Substance Act" and thus cannot serve as a predicate offense for calculating his criminal history category. Aplt. Memo. at 17; Aplt. Br. at 3.

He also disputes the district court's denial of his Rule 35(a) motion. Aplt. Br. at 4.

"Generally, we review a revocation sentence imposed by the district court to determine if it is reasoned and reasonable." United States v. Lamirand, 669 F.3d 1091, 1093 (10th Cir. 2012) (quotations omitted). We review the district court's application of the Guidelines for abuse of discretion. United States v. Rodriguez, 945 F.3d 1245, 1248 (10th Cir. 2019). In applying this standard, we review findings of fact for clear error and legal determinations de novo. United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013).

We conclude the district court correctly determined that Mr. Shaw committed a Grade B supervised release violation.

As previously noted, the Guidelines define a Grade B violation of supervised release as conduct constituting a "federal, state, or local offense punishable by a term of imprisonment exceeding one year." U.S.S.G. § 7B1.1(a)(2). "As the Guidelines envision, the grade of the violation turns on the maximum punishment that could have been imposed." Rodriguez, 945 F.3d at 1253. Under federal law, Mr. Shaw's possession of controlled substances during his supervised release could have been punished by more than one year in prison because he had a 2002 Missouri final conviction for a "drug, narcotic, or chemical offense." 21 U.S.C. § 844(a); ROA, Vol. I at 302. The district court relied on the Missouri conviction to conclude that Mr. Shaw's simple possession of controlled substances was a Grade B violation.

Mr. Shaw contends the district court erred in considering his prior Missouri conviction for three reasons.

First, he claims the Government failed to prove his Missouri conviction. The record shows otherwise. In general, "[w]henever a prior conviction is relevant to sentencing, the government must establish the fact of that conviction by a preponderance of the evidence." United States v. Cooper, 375 F.3d 1041, 1052 (10th Cir. 2004). During his revocation hearing, Mr. Shaw stipulated to the 2002 Missouri conviction. See ROA, Vol. III at 68-69.^[5] The district court did not abuse its discretion in relying on this stipulation. See Blakely v. Washington, 542 U.S. 296, 303 (2004) (acknowledging that a judge may rely on "the facts . . . admitted by the defendant" at sentencing (emphasis omitted)).

Second, Mr. Shaw asserts that his Missouri conviction had "expired" or was too old to be a "prior conviction" under 21 U.S.C. § 844(a). Aplt. Br. at 2. He cites U.S.S.G. § 4A1.2(e), which limits when a district court may consider old convictions to compute a criminal history score. Id. This provision does not apply to § 844(a) and thus has no bearing on...