UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4040

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

AARON POSLEY, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. Liam O’Grady, District 

Judge. (1:08-cr-00295-LO-1) 

Submitted: October 9, 2009 Decided: November 13, 2009 

Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and 

Norman K. MOON, United States District Judge for the Western 

District of Virginia, sitting by designation. 

Affirmed by unpublished per curiam opinion. 

Michael S. Nachmanoff, Federal Public Defender, Rachel S. 

Martin, Assistant Federal Public Defender, OFFICE OF THE FEDERAL 

PUBLIC DEFENDER, Alexandria, Virginia; Richard D. Kelley, REED 

SMITH, LLP, Falls Church, Virginia, for Appellant. Dana J. 

Boente, United States Attorney, Inayat Delawala, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, 

Alexandria, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

 In this appeal, the appellant, Aaron Posley, challenges a 

special condition of his probation, namely, that he serve a sixmonth continuous term of imprisonment, which was imposed 

following his conviction for driving while intoxicated (DUI) on 

Pentagon property in Arlington, Virginia. For the reasons that 

follow, we affirm. 

I 

 On February 17, 2008, Officer Jason Cummiskey of the 

Pentagon Police Department conducted a traffic stop after he 

observed Posley making an illegal left turn on Pentagon 

property. During the traffic stop, Officer Cummiskey determined 

that Posley was intoxicated and arrested him. After his arrest, 

Posley failed a breath test, which measured his breath alcohol 

concentration at .225 and .219, almost three times the legal 

limit. 

 Posley was cited for numerous traffic violations, but 

ultimately pled guilty to DUI and driving without an operator’s 

license. His conviction on the instant DUI offense represented 

his fifth DUI conviction since 1998. 

 On July 24, 2008, Posley was sentenced by a United States 

Magistrate Judge. Posley received a $40 fine for his conviction 

of driving without an operator’s license, and that conviction is 

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not at issue in this appeal. Posley’s DUI conviction, 32 C.F.R. 

§ 234.17(c)(1)(ii), was a Class B misdemeanor under federal law, 

id. § 234.19, also known as a “petty offense.” 18 U.S.C. § 19. 

Class B misdemeanors are punishable by no more than six months’ 

imprisonment, id. §§ 3559(a)(7), 3581(b)(7), are not subject to 

the imposition of supervised release, id. § 3583(b)(3), and are 

not subject to application of the Sentencing Guidelines, U.S. 

Sentencing Guidelines Manual § 1B1.9. The magistrate judge 

sentenced Posley to two years of probation with several special 

conditions, including participating in an alcohol education 

program as directed by the Probation Office. The special 

condition at issue in this appeal is the one in which the 

magistrate judge directed that Posley serve “six months in 

prison.” (J.A. 20). According to the magistrate judge: 

I am going to protect the public from you. You are 

going to kill somebody, but not for a period of six 

months. I impose the maximum sentence. I hope you 

get the treatment you need, but it is not going to be 

at the expense of the public. 

Id.

 Posley appealed his sentence to the district court. In 

particular, he challenged his sentence on the basis that the 

magistrate judge did not order that he serve the six months of 

imprisonment “during nights, weekends, or other intervals of 

time,” as set forth in 18 U.S.C. § 3563(b)(10), which statutory 

subsection constitutes one of the twenty-three enumerated 

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discretionary conditions of probation that a court may impose in 

addition to certain mandatory conditions. 

 In response, the government presented two arguments. 

First, the government argued that 18 U.S.C. § 3561(a)(3) 

authorized the magistrate judge to impose a six-month continuous 

term of imprisonment on Posley at the same time he sentenced him 

to probation. Alternatively, the government argued that 18 

U.S.C. § 3563(b)’s catch-all provision, which broadly requires 

that a defendant “satisfy such other conditions as the court may 

impose,” 18 U.S.C. § 3563(b)(22), authorized the magistrate 

judge to impose a six-month continuous term of imprisonment as a 

special condition of probation. 

 On December 23, 2008, in a memorandum opinion, the district 

court concluded that the special condition of a six-month 

continuous term of imprisonment was permitted under § 3563(b)’s 

catch-all provision. In so concluding, the district court 

expressly did not reach the § 3561(a)(3) issue. 

 On January 6, 2009, Posley filed a timely notice of appeal. 

Two days later, he finished serving his six-month continuous 

term of imprisonment. Posley currently is serving his two-year 

term of probation.*

 *

 We note that the present appeal is not moot even though 

Posley has served the six-month continuous term of imprisonment. 

Cf. Kitt v. United States, 138 F.2d 842, 843 (4th Cir. 1943) 

(Continued) 

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II 

 Posley contends that the magistrate judge erred when he 

imposed as a condition of his probation a six-month continuous 

term of imprisonment. In so contending, Posley posits that the 

district court erred in relying on § 3563(b)’s catch-all 

provision, § 3563(b)(22), to uphold the special condition at 

issue. 

 We need not decide whether the district court’s reliance on 

§ 3563(b)(22) was in error, as any error here is harmless. 

Unquestionably, the magistrate judge had the statutory authority 

under § 3561(a)(3) to sentence Posley to a term of six months of 

continuous imprisonment plus probation. See id. § 3561(a)(3) 

(“A defendant who has been found guilty of an offense may be 

sentenced to a term of probation unless-- . . . (3) the 

defendant is sentenced at the same time to a term of 

imprisonment for the same . . . offense that is not a petty 

offense.”). Critically, we do not have an over incarceration 

problem in this case, because Posley has not served one day of 

imprisonment over the six-month maximum term of imprisonment for 

 

(holding that court of appeals is not limited to striking the 

excess of a sentence beyond the maximum authorized by statute 

and allowing valid portion to remain, but could remand the case 

for an entirely new resentencing where that appeared to be the 

wiser course). 

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a DUI offense. Moreover, there is no indication in the record 

that Posley’s ultimate sentence would have been any different 

had the magistrate judge believed that he could not have given 

Posley the six-month continuous term of imprisonment as a 

special condition of his probation. Under these circumstances, 

any error with regard to the catch-all provision is harmless. 

 

III 

 For the reasons stated herein, the judgment of the district 

court is affirmed. We dispense with oral argument because the 

facts and legal contentions are adequately presented in the 

materials before the court and argument would not aid in the 

decisional process. 

AFFIRMED