NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0814n.06 No. 12-1447 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. MARCUS S HAROD RAND, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI ST R I CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

OPI NI ON

Be fore : GI BB ONS and STRANCH, Circuit J udg es, and H OOD, District Judge

. * JANE B. STRANCH , Circuit J udg e. Def endant Marc us Rand pled g uilty to knowing ly and intentionally possessing a mix ture or substance containing coca ine base in violation of 21 U.S.C. § 841(a) (1) and (b)( 1)(C). Rand ’ s p r e s e nte n c e in v e s ti g a ti o n repor t rec ommended that he be desig nated

a car eer offe nder by counting a 1998 conviction for assault with a dang erous wea pon. Rand objected
to ag g regating his orig inal sentenc e with his jail terms for probation violations to bring the 1998 conviction into the rele vant time fra me for c riminal history

purposes. The district c ourt overr uled Rand’s objection and imposed a 151-month prison sentenc e followed by four y ear s of supervised rele ase. The dist rict co u rt al s o imposed a special condition of supervised rele ase prohibiting hi m

The Honora

ble Denise Pag e Hood, United States District J udg e for the Easter n District of * Michig an, sitting by

desig nation. -1-United States v. Rand

No. 12-1447 from possessing or being the primary user of a cellular phone or elec tronic device without the prior permiss ion of his probation office r. Rand appea ls, arg uing that he was improperly classified as a

car eer offe nder and that the district court abused its discretion in imposing the cell phone restric tion. For the following rea sons, the district court is AF F IRMED

. I. BACKG ROUND On September 9, 2011, office rs with the Kalama zoo Depa rtment of Public Safety responde d
to a shoot ing at an apa

rtment building. De fenda nt Marcus Rand was t he shoot ing victim and was inside an apar

tment belong ing to Shantel Pride. Pride g ave office rs permission to sear ch the apar tment, wher e cra ck-c ocaine , marijuana , cash, and digital scale s wer e found. Rand was subsequently char g ed in a three -count indictment with knowing ly and intentionally possessing with intent to distribute less than 50 kilogr ams of marijuana in violation of 21 U. S

. C

. § 841(a) (1) and (b)( 1)(D) (Count 1); knowing ly and intentionally possessing wi t h intent to distribute 28 g rams of

coca ine base in violation of 21 U.S.C. § 841(a) (1) and (b)( 1)(B )(iii) (Count 2); and knowing ly and intentionally possessing with intent to distribu t e a m i x t ure or substance containing coca ine in violation of 21 U.S.C. § 841(a)(1) and (b) (1)( C) (Count 3). I n a subsequently filed felony information, the U.S. Attorney char g ed Rand with knowing ly and intentionally possessing a mix ture or substance containing coca ine base in violation of 21 U.S.C. § 841(a) (1) and (b)( 1)(C). Rand ag ree d to plead g uilty to this char g e. The plea ag ree ment provided
t h at R an d knowing ly waived his rig ht to appea l “any sentenc e that is at or below the max i m u m g uideline rang e” and “the manner in which the sentenc e was deter mined on the g rounds set forth in

-2-United States v. Rand

No. 12-1447 Title 18, United States Code, Section 3742.” Rand reta ined the rig ht to appea l objections prese rved 1
at sentenc ing reg arding the cou r t’ s g uideline rang e deter

mination, as well as a sentenc e that exceede d the statutory

maxi mum or that was base d on an unconstitutional fac tor. Rand pled guilty befor e a mag istrate judge , who rec ommended to the district court that the plea be acc epted. The district court subsequently

acc epted the ma g istrate judg e’s r eport a nd rec ommendation. Prior to the sentenc i n g hear ing, a prese ntence investigation repor t (PSR) was prepa

red; it

rec ommended that Rand be desig nated a car eer offe nder with a g uideline rang e o f 151 to 188 months. In deter

mining his car eer offe nder statu s , t h e PSR assig ned three criminal history points
to a 1998 conviction for assault with a dang erous wea pon for which Rand was orig inally sentenc ed to 120 day s in pr ison, w ith 24 months probation. Rand violated the terms of his pr obation in June 1999 and spent 10 months in jail. A s econd violation in Dec ember 1999 resulted in an additional 60 day s in jail.

The re levant portion of 18 U.S.C. § 3742 provides that “[a] def endant may file a notice of 1 appea l in the district court for r eview of an other wise final se ntence if the sentenc e”: (1) wa s imposed in violation of law; (2) was imposed as a result of an incorre ct application of the sentenc ing g uidelines; or (3) is g reater than the sentenc e specifie d in the applicable guideline range to the extent that the sentenc e includes a g reater fine or term of imprisonment, probation, or supervised rele ase t h an t h e maxi mum established in the g uideline rang e, or includes a more limit ing condition of probation or supervised rele ase under section 3563(b)( 6) or ( b)(11) than the maximum established in the guideline ra ng e; or (4) was imposed for an offe nse for which there is no sentenc ing gu i d eli ne and is plainly unrea sonable. Id. § 3472(a)

. -3-United States v. Rand

No. 12-1447 Rand objected to his classification as a car eer o ff en d er, arguing that his probation was amende d, rathe r t han revoked, and that pris o n terms foll owing probation vi olations could onl y be ag g reg ated if the probation was specific ally revoke d. The district court overr uled Rand’s objection, finding United States v. Galvan , 453 F.3d 738 (6th Cir. 2006) to be controlling

. The court found that the 1998 conviction and the subsequent terms of imprisonment imposed for the probation violations allowed for a 15-y ear look-bac k period, rende ring the conviction applicable for deter mining car eer offe nder status. As a result, Rand rec eived a 151-month prison sentenc e followed by four y ear s of supervised rele ase. I n addition to sever al standard and specia l conditions, Rand was prohibited from possessing or being the primary user of a cellular phone or elec tronic device without the prior permission of his probation office r. Although Rand’s counsel objected to this restric tion, the district
court reasone d that it was necessa ry beca use “cellular telephones and o t h er el ec t ronic devices are major tools in the drug trade ,” and Rand had a “substantial history of drug traff icking .” This appea l followed. II. ANALYSIS A. Stand ard of Review This court revie ws de novo a district court’s conclusion that a defe ndant is a car eer offe nder. United States v. Robinson , 333 F. App’x 33, 34 (6th Cir. 2009). The court revie ws any finding s of fac t for cle ar err or and “g ive[s] due def ere nce to the district c ourt’s application of the [g]uidelines
to the fac ts.” United States v. Galaviz , 645 F.3d 347, 358 (6th Cir. 2011) (interna l quotation marks omitted).

-4-United States v. Rand

No. 12-1447 De novo review is also applied to determine whether a defendant has waived the right to appeal his sentence pursuant to a plea agreement. United States v. Ferguson , 669 F.3d 756, 764 (6th Cir. 2012). As long as the defendant has knowingly and voluntarily entered into a plea agreement that restricts his right of appeal, “this court is bound by the agreement, and will review a sentence only in limited circumstances, such as where the sentence imposed is based on racial discrimination or is in excess of the statutory maximum.” Id. B. Career Offender Status Under the sentencing guidelines, a defendant is considered a career offender if he or she (1) was at least 18 at the time of the federal offense; (2) the federal offense is either a felony crime of violence or felony controlled substance offense; and (3) the defendant has at least two prior felony convictions for either a crime of violence or a controlled substance offense. USSG § 4B1.1(a). Only the third requirement is at issue here. There is no question that Rand had one qualifying conviction. And Rand does not dispute that the type of offense at issue in the second conviction assault with a dangerous weapon qualifies as a crime of violence. To qualify, however, the offense must also be “punishable by imprisonment for a term exceeding one year.” USSG § 4B1.2(a). The question Rand raises is whether it was appropriate for the district court to aggregate his original sentence (120 days, or 4 months) with the terms of imprisonment he served on the two probation violations in order to satisfy this threshold. Answering this question requires us to examine the interplay between several guidelines provisions and this circuit’s relevant caselaw. Section 4A1.2 of the sentencing guidelines, which contains definitions and instructions for computing criminal history under § 4A1.1, is “applicable to the counting of convictions” for career -5-United States v. Rand

No. 12-1447 offe nder purposes under § 4B1.1. US S G § 4B1.2 comment. (n.3). I n order to be “countable” for criminal history purposes, a prior offe nse must meet cer tain re q u i re m en ts, including occur renc e within a particula

r time fra me. Rand’s PSR added three points by counting his 1998 conviction. To count, the conviction must meet these require ments: the sentenc e of imprisonment must exceed one y ear and one month, USSG § 4A1.1(a ), and the sentenc e had to be imposed within f ifteen y ear s of his “commenc ement of the [federa l] offe nse” or, if not, his incar cer ation must e x tend into this 15- y ear period. Id. comment. (n.1); see also USSG § 4A1.2(e )(1)

. Ex tension into the 15-y ear period

can include time serve d following a violation of probation. Section 4A1.2(k)( 1) instructs that “[i] n the ca se of a

prior re vocation of pr obation . . . , add the or igina l term of imprisonment to a ny term of imprisonment imposed upon revoc at i o n . The resulting total is used to compute the criminal history points .

. . .” The question here is w hether the prison terms Rand ser ved af ter violating his probation we re “ imposed upon revoc ation” of that probation. This court has had two opportunities to construe t he term “re vocation” as it is used i n this

co n t ex t

. T h e first is Galvan , wher e the defe ndant was sentenc ed in state court to four y ear s ’ probation for a particula

r offe nse. 45 3 F. 3d at 740. He violated his probation on two separ ate

occa sions and rec eived terms of imprisonment for eac h (65 day s and 365 day s, respe ctively ); howeve r, his proba t ion was only revoke d afte r the second violation. Id. The district court added these two sentenc es toge ther in calc ulating Galvan’ s criminal history ; beca use the total sentenc e of 430 day s exceede d 13 mo n t h s , t h re e points wer e added to his criminal history score . Id. Galvan argued that beca

use the first violation did not involve an actua l revoc ation of probation, it should not have been considere d. Id. This court disag ree d, holding that “[b] eca use the state court’s imposit ion -6-United States v. Rand

No. 12-1447 of a sentenc e for Galvan’ s probation violation was ‘at least a partial revoc ation of probation that falls within the scope of Guidelines § 4A1.2(k)( 1),’ the district c ourt corr ectly calc ulated [hi s] cr iminal history score .” Galvan , 453 F.3d at 741 (citation omitted) (quoting United States v. Glidden , 77 F.3d 38, 40 (2d Cir. 1996)). The court observe d “to the extent that probation is an alt er n ative to imprisonment, imposit ion of imprisonm en t n ecessarily revoke s probation.” Id. at 741 (interna l quotation marks and c itation omit ted). The second case is Galaviz , wher e the defe ndant alleg ed that the district court miscalculate d his criminal history cate g ory . 645 F.3d at 357. His 2006 fede ral offe nse was almost six and a half

wee ks bey ond the 15-y ear cutoff as calc ulated from the date of parole , which occur red in November 1991. 645 F.3d at 358. The defe ndant was picked up for a parole violation in Dec ember 1991 and

was detained until Fe bruar y 1992, which broug ht the offe nse within the applicable tim e fr ame; howeve r, no actua l parole violation was ever found. Id. at 359. This court held that the district court should not have used this period of incar cer ati o n t o re nder the conviction rele vant for criminal history purposes, concluding that “[t] he parole e must have been incar cer ated due to a revoc ation of parole , rathe r than mere ly have been incar cer ated pending deter mination whether a parole violation

occur red in the first place ” in order for a sentenc e falling outside the rele vant time period to be a countable of

fense

. Id. at 361. Rand argues that Galaviz highlig hts the importance of actual revoc ation, and alleg es there

was no revoc ation in his case . The g overnme nt argues that Galvan applies and Rand’s relianc e on Galaviz is misplaced beca use it dealt with whether incar cer ation prior to a parole -violation hear ing could be counted as an incident of incar cer ation. We ag ree with the g overnme nt’s position. Galaviz -7-United States v. Rand

No. 12-1447 is distinguishable from the present situation, which includes two separate findings of parole violations and subsequently imposed periods of incarceration. As the court stated in Galvan , “to 2 the extent that probation is an alternative to imprisonment, imposition of imprisonment necessarily revokes probation.” 453 F.3d at 741 (internal quotation marks and citation omitted); cf. Glidden , 77 F.3d at 40 (“[W]hen a defendant has been given a suspended sentence of imprisonment . . . and the court has . . . ordered him to serve a period of incarceration [after finding a probation violation], we think it proper to view that order as at least a partial revocation of probation . . . . If, adding the original sentence of imprisonment to all periods of imprisonment imposed upon revocation, whether partial or total , the court finds that the total prison time served was at least 60 days but not more than 13 months, the court should assign the defendant two criminal history points for that prior offense . . . .” (emphasis added)). Because Galvan has already resolved the issue presented in the Government’s favor and is controlling on the relevant point, the district court is affirmed. C. Condition of Supervised Release Rand argues that the district court abused its discretion by imposing a condition of supervised release restricting his use of cellular telephones and electronic devices because there is no evidence Although Rand urges the court to adopt the approach taken by the Ninth Circuit in United 2 States v. Ramirez , 347 F.3d 792, 805 (9th Cir. 2003) which held that “revocation” under § 4A1.2(k) means actual revocation, rather than a period of imprisonment following a finding that parole or probation was violated we are constrained by Galvan ’s rejection of it. See Galvan , 453 F.3d at 740 (citing decisions from the Second, Eleventh, and Seventh Circuits in support of its holding that a period of incarceration following a finding that the defendant’s probation had been violated was “at least a partial revocation of probation,” followed by a “ but see ” citation to Ramirez ).

-8-United States v. Rand

No. 12-1447 that he used such items to facilitate drug trafficking. The government contends that Rand waived his right to challenge conditions of supervised release by entering into a plea agreement that only conferred the right to appeal an incorrectly determined guideline range; a sentence exceeding the statutory maximum; or a sentence based on an unconstitutional factor. Rand responds that the plea agreement is silent as to whether he can appeal supervised release conditions and, thus, should be strictly construed against the government. This court recently decided whether a plea agreement similar to Rand’s foreclosed a challenge to the conditions of supervised release. In Ferguson , 669 F.3d at 760, the defendant’s plea agreement reserved only the right to appeal “any punishment in excess of the statutory maximum or any sentence to the extent it exceeds the maximum of the sentencing range determined under the advisory Sentencing Guidelines,” as well as ineffective assistance or prosecutorial misconduct claims. The defendant challenged five of the special conditions of supervised release imposed by the district court. Id. at 765. The court determined that the plea, which the defendant knowingly and voluntarily entered, foreclosed such a challenge. First, the panel noted that very similar plea agreements had previously been found to “prevent[] a defendant from appealing his . . . conditions of supervised release.” Id. at 765. Second, the court found that the plain language of the agreement prevented the challenge, concluding “that the general reservation of the right to appeal ‘any punishment in excess of the statutory maximum’ or ‘any sentence to the extent that it exceeds the maximum sentencing range’ does not preserve the right to challenge the conditions of supervised release imposed.” Id. at 766 (quoting United States v. Meeks , 290 F. App’x 896, 904-05 (6th Cir. 2008)). Although acknowledging that in one case United States v. Lee , 502 F.3d 447, 449 (6th Cir. -9-United States v. Rand

No. 12-1447 2007) this court reviewed a challenge to special conditions of supervised release notwithstanding an appellate waiver, this was because the “case possibly implicate[d] ineffective assistance by his counsel.” In Ferguson , however, the defendant simply challenged the special conditions as an abuse of the district court’s discretion. The panel concluded that such an argument did “not fall within the limited bounds of [the] decision in Lee to reach the challenge to special conditions despite an appellate waiver provision that arguably foreclosed the appeal.” Ferguson , 669 F.3d at 767. Ferguson ’s principles are applicable here. There is nothing to indicate that Rand’s guilty plea was not knowingly and voluntarily entered. Rand waived the right to appeal “any sentence that is at or below the maximum guideline range as determined by the Court before any upward departure or variance, and the manner in which the sentence was determined.” The only appellate rights retained were objections made at the time of sentencing regarding the court’s guideline range determination and the right to appeal a sentence exceeding the statutory maximum or based on an unconstitutional factor. Although Rand argues that the government could have specifically included challenges to the conditions of supervised release in the plea agreement, there is nothing precluding the government from reaching the same result by broadly prohibiting appeal, subject to narrow exceptions. Finally, there is no allegation that Rand’s counsel was ineffective in this area, only that the district court abused its discretion in imposing this particular condition of supervised release. As noted above, we are constrained by the determination in Ferguson that such an argument is foreclosed by an appellate waiver provision similar to Rand’s. For these reasons, we conclude that

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No. 12-1447 Rand’s challeng e to the condition of his supervised rele ase was waived pursuant to h i s p lea ag ree ment. III. CONCLUSION For the fore g oing r easons, the district c ourt is AF F IRMED

.

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