Prior offenses impact grading of supervised release violations

US v. Wynn:  Anthony Wynn began a 5-year term of supervised release upon completion of the imprisonment portion of a 150-month drug trafficking sentence.  His PO filed a petition for revocation of Wynn’s supervised release after Wynn tested positive for marijuana use 6 times, as well as other allegations, e.g., driving without a license, operating an uninsured vehicle, and tinted windows, failing to submit monthly reports, failure to complete substance abuse treatment, and failing to timely advise his PO of a new arrest.  Wynn admitted his violation conduct; the district court found that Wynn had violated his supervised release, and revoked him.

Wynn’s PO calculated a term of imprisonment based on Wynn’s prior drug convictions.  Even though his marijuana charges would have been grade C violations absent any consideration of Wynn’s criminal history, the PO counted the violations as grade B violations under a recidivist enhancement.  Wynn had prior convictions in state court for possession of heroin, possession with intent to deliver heroin, possession of marijuana, and possession of heroin, and possession of cocaine and marijuana, dating from 1994 through 2002.  The district court held that Wynn’s recidivism directly affected the grade of his violations; Wynn challenged the procedural calculations of his revocation sentence on appeal.

The question on appeal was whether the court properly applied a statutory enhancement in calculating the applicable policy statement range, whether Wynn’s conduct of possessing marijuana was a grade B or C violation under the policy statements.  The difference between these two violations is the length of the term of imprisonment the offense may by punishable by:  grade C violations call for one year or less; grade B violations call for term exceeding one year.  Application Note 1 to USSG §7B1.1, according to the panel here, allows the “district court to consider not only conduct for which a defendant is prosecuted in a criminal case, but all of a defendant’s conduct,” whether or not the defendant has been prosecuted for it.  The commentary, the panel found, suggests that district courts should consider all conduct that affects the maximum penalties for a violation of supervised release.  The Fourth Circuit upheld the determination that this defendant’s possession of marijuana during his supervised release constituted grade B, not grade C, violations.