UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4373

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

HARRY D. HUNNELL,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge. (1:94-cr-70032-JPJ-1)

Submitted: December 27, 2019 Decided: February 21, 2020

Before GREGORY, Chief Judge, and MOTZ and RICHARDSON, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

Juval O. Scott, Federal Public Defender, Brian J. Beck, Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Abingdon, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, Roanoke, Virginia, S. Cagle Juhan, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Harry D. Hunnell appeals the 27-month sentence imposed upon revocation of

supervised release. On appeal, Hunnell asserts that his due process rights were violated

because he failed to receive adequate notice that some of his alleged violations of

supervised release were Grade B violations and that the district court misconstrued the

maximum sentence. The Government has filed an unopposed motion to remand for

resentencing noting that the maximum term of imprisonment for the violations was 24

months.

The violation petition did not provide any information regarding the grade of the

violations, but the supervised release violation report stated all the violations were Grade

C. The Government filed notice that it believed the drug violations were Grade B

violations, arguing that Hunnell’s use of controlled substances established that he

possessed the drugs in violation of

(a) (2018), which, with Hunnell’s prior

drug convictions, resulted in a Grade B violation, U.S. Sentencing Guidelines Manual §

7B1.1(a)(2), p.s. (2016). Hunnell objected to the violations being considered Grade B,

arguing that the petition only alleged use, rather than possession, of controlled substances,

and questioned whether he received sufficient notice of Grade B violations. The district

court found the violations alleged were Grade B and that Hunnell had adequate notice of

such violations.

While revocation hearings are not part of a criminal prosecution, a defendant is

nonetheless entitled to the “minimum requirements of due process,” including “written

notice of the claimed violations.” Morrissey v. Brewer,

(1972). Due

2 process requires that a defendant receive written notice of his alleged violation of

supervised release so that he is informed of the charges against him and may prepare a

defense. Fed. R. Crim. P. 32.1(b)(2)(A); see United States v. Chatelain,

(2d Cir. 2004). “We review the alleged denial of due process de novo.” United States v.

Legree,

(4th Cir. 2000).

Proof that a defendant intentionally used a controlled substance is sufficient to

establish possession of that substance. See United States v. Clark,

(4th Cir.

1994) (finding voluntary and knowing ingestion constitutes possession); United States v.

Battle,

(4th Cir. 1993) (“Federal courts uniformly have held that proof of

intentional use of controlled substances is sufficient to establish possession for the purposes

of applying [18 U.S.C.] § 3583(g).”). Therefore, the allegations of Hunnell’s repeated and

admitted use of marijuana constituted possession, a Grade B violation, and thus provided

Hunnell adequate notice of such violations. Moreover, the petition and revocation report

noted that Hunnell violated terms of his supervised release prohibiting both the use and

possession of controlled substances and the Government promptly noticed that it believed

the violations were Grade B. Under these circumstances, we conclude that Hunnell’s due

process notice argument is without merit and we affirm the revocation of Hunnell’s

supervised release.

The Government has filed an unopposed motion to remand for resentencing, stating

that Hunnell faced a maximum sentence of 24 months. Hunnell originally was convicted

of violating

(a), a Class C felony,

(a)(3) (2018), which

allows imposition of a three-year term of supervised release after a term of imprisonment,

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(b)(2) (2018). Upon revocation of supervised release, however, a court

may not impose a sentence of greater than two years of imprisonment,

(e)(3) (2018). Thus, Hunnell’s 27-month sentence was imposed in excess of the

statutory maximum. Accordingly, we vacate Hunnell’s sentence and grant the

Government’s motion to remand for resentencing.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED

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