2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-14-2014

USA v. Tyrone Bullock

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-4662

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Recommended Citation

"USA v. Tyrone Bullock" (2014). 2014 Decisions. Paper 849.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

_______________

No. 13-4662

_______________

UNITED STATES OF AMERICA, 

v.

TYRONE BERNARD BULLOCK,

Appellant

_______________

On Appeal From the United States District Court for the 

Western District of Pennsylvania

(Case No. 2-06-cr-00328-001)

District Judge: Honorable Cathy Bissoon

_______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

June 26, 2014

Before: McKEE, Chief Judge, and FUENTES and GREENAWAY, JR., Circuit Judges.

(Filed: August 14, 2014)

_____________

OPINION

_____________

FUENTES, Circuit Judge:

The District Court sentenced Tyrone Bullock to 21 months’ imprisonment for 

violating the terms of his supervised release. Bullock now appeals, arguing that the 
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District Court erred by finding that he committed a Grade B, rather than a Grade C, 

violation of the terms of his supervised release. For the reasons that follow, we affirm. 

I. Background

Tyrone Bullock pleaded guilty to one count of possession with intent to deliver 

one hundred grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 

841(b)(1)(B)(i). He was sentenced to 168 months’ incarceration and five years of 

supervised release. Bullock’s supervised release conditions prohibited him from, among

other things, unlawfully possessing a controlled substance and violating state and federal 

law. 

After serving his sentence, Bullock began his term of supervised release. Within 

five months, Bullock tested positive twice for heroin. When confronted by his Probation 

Officer, Bullock admitted that he had used heroin on a weekly basis. After failing to 

complete several drug treatment programs, Bullock’s conditions for supervised release 

were modified, by consent, to include participation in the Probation Office Intermediate 

Sanction Program. Bullock failed to attend several mandatory Program sessions. He also 

tested positive to heroin on four more occasions. 

Thereafter, Bullock’s Probation Officer filed a petition detailing the nature of 

Bullock’s non-compliance, and alleging that Bullock had violated the terms of his 

supervised release by: (1) failing to “refrain from any unlawful possess[ion of] a 

controlled substance,” (2) failing to “submit to urinalysis as directed by the probation 

officer and [] participate in a substance abuse treatment program as directed by the 

probation officer,” and (3) failing to “complete the Probation Office Intermediate 
3

Sanction Program.” App’x 22. On Bullock’s “Violation Work Sheet,” the Probation 

Officer indicated that Bullock’s unlawful possession of a controlled substance could 

either be a Grade B or C violation, and that the other two violations were Grade C.1

At his supervised release revocation hearing, Bullock conceded that he had 

violated the terms of his supervised release. Bullock argued, however, that his use of 

heroin constituted nothing more than a violation of his condition of supervised release 

conditions, a “classic Grade C violation.” App’x 33. The District Court disagreed. It 

found that “defendant’s admission to habitually using heroin, along with his multiple 

positive drug tests, constitute[ed] evidence of drug possession in violation of 21 U.S.C., 

Section 844(a).” App’x 41. Because the maximum sentence under § 844 for a defendant 

with prior possessions exceeds one year, the District Court concluded that Bullock had 

committed a Grade B violation. The District Court sentenced Bullock to 21 months, the 

bottom of the guideline range for a Grade B. Bullock now appeals.2

II. Analysis

A.

 

1 Section 7B1.1 of the sentencing guidelines outlines three grades of supervised release 

violations, ranging from Grade A, the most serious, to Grade C, the least serious. 

U.S.S.G. § 7B1.1(a). Relevant here, Grade B is a violation consisting of “conduct 

constituting any other federal, state, or local offense punishable by a term of 

imprisonment exceeding one year,” while, a Grade C violation consists of “conduct 

constituting (A) a federal, state, or local offense punishable by a term of imprisonment of 

one year or less; or (B) a violation of any other condition of supervision.” Id.

2 The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231. We 

have jurisdiction to review Bullock’s sentence under 28 U.S.C. § 1291. We review for 

clear error the factual findings supporting a district court’s revocation of supervised 

release, while any legal issues are subject to a de novo standard of review. See, e.g.,

United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008).
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Bullock contends that he lacked sufficient written notice that he was facing a 

Grade B violation. He notes that his supervised release petition “only stated that [he] 

violated the conditions of his release,” a Grade C violation, not that he possessed heroin 

in violation of federal law, a Grade B violation.3 Appellant’s Br. 8.

The Federal Rules of Criminal Procedure entitle a person subject to a revocation 

hearing to “written notice of the alleged violation.” Fed. R. Crim. P. 32.1(b)(2)(A); cf. 

Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (noting that revocation of supervised 

release “is not part of criminal prosecution and thus the full panoply of rights due a 

defendant in such a proceeding does not apply”). “For notice to be effective” under Rule 

32.1, “it need only assure that the defendant understands the nature of the alleged 

violation.” United States v. Sistrunk, 612 F.3d 988, 992 (8th Cir. 2010). 

In other words, a defendant’s right to pre-hearing notice is satisfied where he has 

written notice of the conduct on which his revocation is based. United States v. Gordon, 

961 F.2d 426, 429-30 (3d Cir. 1992). Thus, in Gordon, we held that a defendant had 

adequate notice where the district court relied on two positive drug tests discussed in the 

probation violation petition to determine that the defendant had possessed a controlled 

substance, despite that fact that “the probation violation petition did not formally charge 

her with use or possession of a controlled substance.” Id. at 429. This was sufficient 

notice, we explained, because “[t]his court has stated that drug use indicated by urinalysis 

 

3 More precisely, possession of heroin is a Grade B violation only where it is punishable 

by a term of imprisonment of more than one year. As we explain in more detail below, 

however, heroin possession is punishable by a term of imprisonment of more than one 

year where, as here, the defendant is a repeat offender. See 21 U.S.C. § 844.
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is [] circumstantial evidence of drug possession.” Id. (citing United States v. Blackston, 

940 F.2d 877, 886 (3d Cir. 1991)); cf. Sistrunk, 612 F.3d at 992 (finding factual 

allegations that defendant fraudulently obtained state identification cards and a credit 

card to be sufficient notice of the charge, despite the fact that the Government did not 

specify in advance which laws the defendant violated). 

Like the defendant in Gordon, Bullock had adequate notice that he would be found 

to have possessed drugs. Bullock not only tested positive six times to heroin use, but he 

also admitted his habitual drug use to his Probation Officer. Under our case law, this is 

more than enough notice, for Bullock, and evidence, for the District Court, to find that 

Bullock possessed drugs, in violation of state and federal law. See Gordon, 961 F.2d at 

429-30; see also Blackston, 940 F.2d at 891. The allegations in the petition, combined 

with our case law, put Bullock on notice that he faced the possibility of being sentenced 

as a Grade B violator.4

B.

Bullock next argues that even if he had notice that he possessed heroin in violation 

of state of federal law, the District Court nonetheless erred in finding that he committed a 

Grade B violation rather than a Grade C violation. This is so, he contends, because his 

conduct was not “punishable by a term of imprisonment exceeding one year.” 

U.S.S.G. § 7B1.1(a)(1).

 

4 Moreover, although Bullock was not entitled to pre-hearing notice that his he would be 

found to have possessed drugs, he received actual written notice that through his 

Violation Work Sheet, which stated that his heroin use amounted to a Grade “B-C” 

violation. App’x 25. The Work Sheet gave Bullock more than adequate notice that he 

should prepare to be found to have possessed heroin in violation of state or federal law. 
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The District Court concluded that Bullock violated 21 U.S.C. § 844(a), which 

provides that simple possession of a controlled substance is punishable by “a term of 

imprisonment of not more than 1 year . . . except that if he commits such offense after a 

prior conviction [for drug possession], he shall be sentenced to a term of imprisonment 

for not less than 15 days but not more than 2 years.” 21 U.S.C. § 844(a).

Bullock concedes that he is a repeat offender and therefore eligible for a sentence 

exceeding one year. See United States v. Bungar, 478 F.3d 540, 545 (3d Cir. 2007). He 

argues, however, that the District Court was precluded from finding him a repeat offender 

in this instance, because the Government failed to file a notice, under 21 U.S.C. § 851, 

that it would ask the Court to consider Bullock’s “underlying conviction as a predicate 

conviction allowing for the enhanced penalties for simple possession of Title 21, U.S.C. § 

844.” Appellant’s Br. 15.

Section 851 obliges the government to notify a defendant that his prior crimes will 

increase his punishment. Section 851 provides in relevant part that:

[n]o person who stands convicted of an offense under this part shall be sentenced 

to increased punishment by reason of one or more prior convictions, unless before 

trial, or before entry of a plea of guilty, the United States attorney files an 

information with the court (and serves a copy of such information on the person or 

counsel for the person) stating in writing the previous convictions to be relied 

upon. 

21 U.S.C. § 851(a)(1). By its plain language, § 851(a) applies where a defendant “stands 

convicted” of drug possession. Nothing in § 851 suggests, however, that the statute 

applies in the supervised release revocation context, where a district court need only 

determine that defendant’s conduct would be “punishable by a term of imprisonment 
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exceeding one year” under U.S.S.G. § 7B.1(a)(2); see also id. cmt. n.1 (explaining that 

“[t]he grade of the violation does not depend upon the conduct that is the subject of 

criminal charges or of which the defendant is convicted in a criminal proceeding. Rather, 

the grade of the violation is to be based on the defendant’s actual conduct.”). 

Additionally, revocation of supervised release is determined by hearings, and § 851 seeks 

to protect a defendant who is subject to trial. United States v. Lewis, 597 F.3d 1345, 1347 

(7th Cir. 2010) (explaining that § 851 “give[s] a defendant an opportunity to contest the 

accuracy of his prior convictions and to inform his decision on whether to plead guilty or 

proceed to trial” (emphasis added)).

In short, the District Court did not commit procedural error by finding that 

Bullock’s possession of heroin was a crime punishable under federal law for a term of 

imprisonment exceeding one year. By extension, the District Court did not err in 

concluding that Bullock’s conduct constituted a Grade B, not a Grade C, violation. 

III. Conclusion

For the forgoing reasons, we affirm Bullock’s sentence in all respects.