11-5237 United States v. Rose UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

### SUMMARY ORDER Rulings by summary order do not have precedential effect. Ci tation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Pr ocedure 32.1 and this court’s Lo cal Rule 32.1.1. When citing a summary order in a document filed with this court, a pa rty must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citinga summary order must serve a copy of it on any party not represented by counsel. At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 19 thday of February, two thousand thirteen. 3 4 PRESENT: 5 6 D EBRA A NN L IVINGSTON , 7 RAYMOND J. L OHIER , J R ., 8 Circuit Judges , 9 L EWIS A. KAPLAN , * 10 District Judge
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_______________________________________________ 12 13 U NITED S TATES , 14 15 Appellee , 16 -v.- No. 11-5237-cr 17 18 B RANDON R OSE , 19 Defendant-Appellant
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D AVID J. WENC , Wenc Law Offices, Windsor Locks, CT, for 22 Defendant-Appellant
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* The Honorable Lewis A. Kapl an, of the United States District Court for the Southern District of New York, sitting by designation. 1R OBERT M. S PECTOR(Sandra S. Glover, on the brief ), for 1 David B. Fein, United States Attorney for the District of 2 Connecticut, New Haven, CT, for Appellee
. 3 UPON DUE CONSIDERATION , it is hereby ORDERED, ADJUDGED , and DECREED 4 that the order of the district court is AFFIRMED
. 5 Defendant-Appellant Brandon Rose (“Rose”) appeals from a December 14, 2011 judgment 6 of the United States District Court fo r the District of Connecticut (Chatigny, J .) sentencing him to 7 36 months’ imprisonment for a violation of the term s of his supervised release. We assume the 8 parties’ familiarity with the underlying facts and procedural history of the case. 9 If a sentencing court finds that a defendant has violated the terms of his or her supervised 10 release, it has the authority to revoke the conditions of supervised release and require the defendant 11 to serve a term of imprisonment. See 18 U.S.C. § 3583(e)(3). The Sentencing Guidelines divide 12 violations of conditions of supervised releas e into three grades: “A,” “B,” and “C.” See U.S.S.G. 13 § 7B1.1. The district court concluded that Rose , who was arrested by police with $998 in cash and 14 three grams of crack cocaine, ha d committed the Grade A violation of possession of a controlled 15 substance with intentto distribute. See id. § 7B1.1(a)(1) & cmt. 3; see also id. § 4B1.2(b). Rose 16 does not contest the district court’s factual findi ngs. Rather, his only argument on appeal – which 17 he did not make below – is that the district c ourt should have found that his conduct constituted only 18 a Grade B violation because it did not meet the requirements of a particular Connecticut criminal 19 statute, Conn. Gen. Stat. § 21a-278. 20 Rose premises this argument on U.S.S.G. § 7B1.1(b), which states that when a “violation 21 includes conduct that constitutes more than one offens e, the grade of the violation is determined by 22 the violation having the most serious grade.” Rosecontends that § 7B1.1(b) compelled the district 23

2court to determine the grade of his violation by re ference to the state or federal statute having the 1 highest maximum penalty under which his conduct could have been charged, which he alleges is 2 Conn. Gen. Stat. § 21a-278. Because that statute requires the defendant to be “non-drug-dependent,” 3 Rose then maintains that his conduct did not cons titute a violation of § 21a-278, that the district 4 court did not make a finding that he was “non-drug-dependent,” and th at therefore he did not commit 5 a Grade A violation. This argumen t is self-contradicting: it claims at once that Rose both did and 6 did not violate § 21a-278. It also has no basi s in U.S.S.G. § 7B1.1, which speaks in terms of 7 violation grades, not specific criminal statutes. Section 21a-278 aside, Rose’s conduct clearly 8 violated other statutes that criminalize possession of narcotics with intent to distribute, a Grade A 9 violation. See 21 U.S.C. § 841(a)(1); Conn. Gen. Stat. § 21a-277; see also U.S.S.G. § 7B1.1 cmt. 10 1 (“[T]he grade of the violation is to be based on the defendant’s actual conduct.”). 11 The district court did not err, much less plainly err, in concluding that Rose’s conduct 12 constituted a Grade A violation of the terms of his supervised release. For the foregoing reasons, 13 the judgment of the district court is AFFIRMED
. 14 FOR THE COURT: 15 Catherine O’Hagan Wolfe, Clerk 16 17

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