United States of America v. Terry Lashavious McMillian

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4308
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRY LASHAVIOUS MCMILLIAN,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:11-cr-00102-H-1)
Argued: May 12, 2016 Decided: June 15, 2016
Before KING and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant. Christopher
Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara,
Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
While on supervised release in North Carolina, Terry
Lashavious McMillian was arrested and charged in state court
with various criminal offenses. Although those charges were
later dismissed, McMillian’s probation officer sought to revoke
supervised release on the facts underlying the state charges.
The district court agreed, revoked McMillian’s supervised
release, and sentenced him to twenty-four months in prison.
McMillian appeals the court’s revocation decision and sentence.
As explained below, we affirm.
I.
A.
In December 2011, McMillian pleaded guilty in the Eastern
District of North Carolina to a conspiracy offense under 18
U.S.C. § 371. In April 2012, the district court sentenced him
to forty-six months in prison and three years of supervised
release. As a condition of supervised release, McMillian could
not “commit another federal, state, or local crime.” See J.A.
14.1 In January 2014, McMillian was released from prison and
began serving his three-year term of supervised release.
1 Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

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On March 1, 2015, McMillian was arrested and charged in
Columbus County, North Carolina, on four state criminal
offenses: “Damage to Real Property”; “Assault by
Strangulation”; “Larceny of a Motor Vehicle”; and “Second Degree
Kidnapping.” See J.A. 18, 37. Three days later, as a result of
those charges, McMillian’s probation officer moved the district
court for revocation of supervised release. The motion alleged
that, on February 25 and 26, 2015, McMillian had assaulted Ashea
Covington — his girlfriend and the complaining witness — “by
holding her down on the ground and strangling her.” Id. at 18.
He also “forced her into her car and drove around for several
hours not allowing her to get out,” and then took her car
without her permission. Id.
Covington later recanted the allegations she had made
against McMillian, and the prosecutor dismissed the state
criminal charges. The revocation motion remained pending in the
district court, however, and on May 28, 2015, the court
conducted an evidentiary hearing on that motion. Three
witnesses testified: Tyler Reeves, a sergeant with the Columbus
County Sheriff’s Office; John Cooper, McMillian’s probation
officer; and Covington. Reeves recounted the allegations
Covington had made against McMillian shortly after the assault,
and authenticated and introduced Covington’s signed written
statement, which detailed those events. Cooper authenticated

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and introduced the written statement of Pearl Carter —
Covington’s mother — concerning the assault. In her testimony,
Covington again repudiated the allegations she had made against
McMillian. McMillian did not testify, but introduced into
evidence the dismissals of the state charges.
B.
The evidence at the hearing was that, on February 24, 2015,
McMillian showed up uninvited at the residence of Covington and
Carter.2 When Covington and Carter refused entry, McMillian
broke their glass storm door.
The following day, McMillian and Covington had an argument,
which escalated to physical violence when McMillian attacked
Covington. After the assault, McMillian ordered Covington to
get in her car, and then drove her around Columbus and Bladen
Counties for several hours. When McMillian stopped for gas —
which he bought with Covington’s debit card — he dared her “to
yell for help” and threatened to “beat her dead” if she did.
See J.A. 100. McMillian eventually released Covington, but he
kept her car, her debit card, and one of her credit cards.
Carter called the Columbus County Sheriff’s Office to
report that her daughter had been assaulted. Sergeant Reeves,
2 We recite the facts in the light most favorable to the
government, as the prevailing party at the revocation hearing.
See United States v. Thum, 749 F.3d 1143, 1145 (9th Cir. 2014).

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who responded to the call, interviewed both Carter and Covington
on February 28, 2015. He observed that Covington’s “whole [eye]
was bloodshot red” from a “busted” blood vessel. See J.A. 34-
35. Covington told Reeves that she suffered the eye injury when
McMillian strangled her. Reeves also took Covington’s written
statement, which reads, in pertinent part:
[O]n Wednesday, February [25], 2015[,] [McMillian and
I] exchanged words, after which [McMillian] jumped at
me. As I was knocked to the ground, I was choked
nearly unconscious. I urinated on myself. He then
sat on my chest and slapped me in my face several
times resulting in a busted lip, busted blood vessels
in right eye, swollen jaw. He also forced my fingers
back nearly as far as they would go. Eventually he
allowed me up and told me to go wash my face up
because my mouth was bleeding. He then took my entire
set of keys and told me to go get in my vehicle and
that he was driving. He said that if I tried anything
crazy that he would beat me dead where I was despite
location and company. He rode me around until the wee
hours of the morning and took me back to my mother’s
home. He has refused to give me the keys back to my
vehicle to this moment.
Id. at 99.
At about 9:00 a.m. on March 2, 2015, Covington visited the
emergency room of the Columbus County Regional Medical Center,
complaining of pain around her temples and in the ring fingers
of both hands, as well as generalized body pain. She reported
to the medical personnel that her injuries were caused by
McMillian’s assault about a week earlier, when he “strangled and
choked” her, kicked her, and “slapped [her] in [the] face
multiple times.” See J.A. 102, 110. On physical examination, a

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physician assistant noted subconjunctival hemorrhage — a broken
blood vessel in the white of the eyes. An x-ray showed a
possible hairline fracture of Covington’s left ring finger. A
splint was placed on each of Covington’s ring fingers, and she
was discharged from the hospital.
C.
After considering the evidence presented and argument from
counsel, the district court ruled that McMillian had violated
the terms of his release “by his criminal conduct, to include
assault and probable theft of a motor vehicle.” See J.A. 89.
Before sentencing McMillian, the court explained its
determination of the applicable Sentencing Guidelines range:
The court believes that this is a grade A violation
and the defendant has a criminal history category of
roman numeral V. Under Chapter 7, it would be a 30 to
37-month type of sentence available for the court to
consider; however, there’s a [statutory] maximum of 24
months.
Id.
Relying on Covington’s hearing testimony, in which she
repudiated her earlier version of the relevant events, McMillian
asked the district court to consider downgrading his supervised
release violation from grade A to grade C, based on the lesser
offenses of misdemeanor assault and unauthorized use of a motor
vehicle. The court declined to do so, however, finding
Covington’s exculpatory testimony “unreliable in its totality,”

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and instead crediting her earlier inculpatory statements to
Sergeant Reeves and the hospital staff. See J.A. 91. McMillian
also sought a lenient sentence on the ground that he had
otherwise complied with the conditions of his supervised
release. The court rejected that entreaty as well, explaining
that, although McMillian “hadn’t had any problems while he had a
job,” he also had “a long history of this type of conduct.” Id.
at 92.
The district court then revoked McMillian’s supervised
release and sentenced him to twenty-four months in prison. In
rendering its sentence, the court explained that it had
“considered the policy statements contained in Chapter 7 of the
U.S. Sentencing Guidelines as well as the other factors set out
in [18 U.S.C. § 3553(a)].” See J.A. 95. The court recommended
that, while incarcerated, McMillian “be exposed to the most
intense anger management training and education possible.” Id.
at 96. Later that day, the court entered its judgment.
McMillian has timely appealed, and we possess jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
II.
On appeal, McMillian presents three contentions of error.
First, he argues that the district court erred in finding that
he committed the state offense of assault by strangulation.

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Second, he contends that the court plainly erred in calculating
the applicable Sentencing Guidelines range. Finally, he
maintains that the court failed to adequately explain the
twenty-four month revocation sentence. We address those
contentions in turn.
A.
McMillian first contends that the district court erred in
finding that he committed the North Carolina offense of assault
by strangulation. The government responds that the court’s
finding was supported by the evidence and thus was not clearly
erroneous. To revoke a defendant’s supervised release, a
district court need only find by a preponderance of the evidence
that the defendant violated a condition of release. See United
States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). We review
such a factual finding for clear error. See United States v.
Padgett, 788 F.3d 370, 373 (4th Cir. 2015).
Assault by strangulation is proscribed by N.C. Gen. Stat.
§ 14-32.4(b), which provides that “any person who assaults
another person and inflicts physical injury by strangulation is
guilty of a Class H felony.” The elements of assault by
strangulation are (1) an assault and (2) the infliction of
physical injury by strangulation. See State v. Little, 654
S.E.2d 760, 764 (N.C. Ct. App. 2008).

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McMillian contends on appeal that the government failed to
show by a preponderance of the evidence that Covington suffered
any physical injury resulting from strangulation. In support of
that contention, McMillian emphasizes the absence of evidence of
either redness or bruising around Covington’s neck. Addressing
Covington’s eye injury, McMillian points to Covington’s written
statement, which attributes that injury to being slapped in the
face, rather than being strangled.
The evidence, however, proved that McMillian had choked
Covington almost to the point of unconsciousness, causing her to
lose control of her bladder. As a result, Covington suffered a
subconjunctival hemorrhage — an eye injury that commonly occurs
as a result of either strangulation or a direct blow to the eye.
See State v. Lanford, 736 S.E.2d 619, 628 (N.C. Ct. App. 2013).
Although Covington reported being slapped across the face, there
is no evidence to suggest that McMillian struck her directly in
her eye. Moreover, Covington complained of neck pain to the
medical personnel at the hospital. Accordingly, we are
satisfied that the court did not clearly err in finding, by a
preponderance of the evidence, that McMillian strangled
Covington and thereby caused her to suffer a physical injury.
See State v. Lowery, 743 S.E.2d 696, 699 (N.C. Ct. App. 2013)
(finding sufficient evidence presented to satisfy physical

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injury prong of assault by strangulation where evidence of
injuries was consistent with strangulation).3
B.
McMillian next contends — for the first time on appeal —
that the district court miscalculated the advisory Guidelines
range for his supervised release violation. Specifically, he
argues that the court misclassified assault by strangulation as
a “crime of violence” under the applicable Guidelines provision,
and thus overstated the severity of his violation.
We review a sentence imposed for a supervised release
violation “to determine if it is ‘plainly unreasonable.’” See
United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). In
making that determination, “we first consider whether the
sentence imposed is procedurally or substantively unreasonable.”
See United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).
As relevant here, procedural error in the sentencing context may
include improperly calculating the Guidelines range or failing
to adequately explain the chosen sentence. See United States v.
3 McMillian also contends that the district court erred in
finding that he committed larceny with respect to Covington’s
car, insisting that the prosecutors failed to prove that he
intended to permanently deprive Covington of her vehicle. That
contention lacks merit. The evidence showed that McMillian took
Covington’s car without her consent and was yet in possession of
the vehicle when he was arrested almost a week later. On that
evidence, the court was entitled to infer that McMillian
intended to keep the car and thus had committed larceny.

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Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013). If we conclude
that a sentence is unreasonable, we then consider whether it is
also “plainly unreasonable, relying on the definition of ‘plain’
that we use in our ‘plain’ error analysis,” i.e., clear or
obvious. See Crudup, 461 F.3d at 439.
An issue pursued on appeal but not preserved in the lower
court is reviewed for plain error only. See United States v.
Olano, 507 U.S. 725, 731-32 (1993). To satisfy that standard, a
defendant must show “(1) that an error was made; (2) that the
error was plain; and (3) that the error affected his substantial
rights.” See United States v. Carthorne, 726 F.3d 503, 510 (4th
Cir. 2013). We will correct a plain error only when those
criteria are satisfied and doing so is necessary to prevent “a
miscarriage of justice” or to ensure “the fairness, integrity or
public reputation of judicial proceedings.” See United States
v. Whitfield, 695 F.3d 288, 303 (4th Cir. 2012) (internal
quotation marks omitted).
1.
Chapter 7 of the Sentencing Guidelines addresses probation
and supervised release violations. The advisory Guidelines
range for a violation of a condition of supervised release is
determined by the Revocation Table contained in Guidelines
section 7B1.4(a). The range applicable to a particular
defendant depends on three factors, only two of which are

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relevant to these proceedings: the defendant’s criminal history
category, as determined at the time the defendant was sentenced
to the term of supervision; and the grade of the supervised
release violation. See USSG § 7B1.4(a).4 If the range specified
by the Revocation Table is entirely above the statutory maximum
sentence or below the statutory minimum sentence, then the
statutory maximum or minimum sentence, respectively, “shall be
substituted for the applicable range.” See id. § 7B1.4(b)(1),
(2).
Guidelines section 7B1.1 creates three grades of supervised
release violations: A, B, and C. Grade A violations arise from
conduct constituting either an offense punishable by more than
twenty years in prison; or an offense punishable by more than
one year in prison “that (i) is a crime of violence, (ii) is a
controlled substance offense, or (iii) involves possession of a
firearm or destructive device.” See USSG § 7B1.1(a)(1). Grade
B violations encompass all conduct constituting any other
offense punishable by more than one year in prison. Id.
§ 7B1.1(a)(2). All other supervised release violations are
classified as grade C. Id. § 7B1.1(a)(3).
4 We refer in this opinion to the 2014 edition of the
Sentencing Guidelines, the edition applicable to McMillian’s
sentencing for his supervised release violation.

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Application Note 2 to Guidelines section 7B1.1 explains
that the term “crime of violence” is defined in Guidelines
section 4B1.2. That section provides as follows:
(a) The term “crime of violence” means any offense
under federal or state law, punishable by imprisonment
for a term exceeding one year, that —
(1) has as an element the use, attempted
use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents a
serious potential risk of physical injury to
another.
Paragraph (a)(1) of section 4B1.2 is commonly known as the
“force clause,” and the portion of paragraph (a)(2) that starts
with “otherwise” is referred to as the “residual clause.” See
United States v. Hemingway, 734 F.3d 323, 327 (4th Cir. 2013)
(employing that terminology for similar statutory provision).
In determining whether an offense is a crime of violence under
either clause, we utilize the categorical approach, which
focuses solely on the elements of the offense, rather than on
the facts of the case. See Carthorne, 726 F.3d at 511.
2.
The district court applied the foregoing legal framework
when it sentenced McMillian for his supervised release
violation. The court determined that McMillian had committed a
grade A violation and indicated that his criminal history

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category was V. For such a defendant, the Revocation Table
specifies a Guidelines range of 30 to 36 months.5 As the court
also recognized, however, McMillian was subject to a statutory
maximum sentence of twenty-four months, pursuant to 18 U.S.C.
§ 3583(e)(3). Accordingly, under Guidelines section
7B1.4(b)(1), the twenty-four month statutory maximum sentence
was “substituted for the applicable range.”
McMillian contends that the district court misclassified
his violation as grade A, and thereby miscalculated the advisory
Guidelines range. Specifically, he maintains that assault by
strangulation is not categorically a crime of violence, and that
the court thus should have classified his violation as grade B
rather than grade A. Under that scenario, McMillian’s
Guidelines range would have been 18 to 24 months. The
government, for its part, maintains that assault by
strangulation qualifies as a crime of violence under the force
clause of Guidelines section 4B1.2.
As McMillian acknowledges, he failed to raise this
contention in the district court. As such, it is subject to
plain error review only, and McMillian must therefore show that
5 At the revocation hearing, the district court misstated
the range provided by the Revocation Table in Guidelines section
7B1.4 as 30 to 37 months, rather than 30 to 36 months. That
misstatement had no impact on McMillian’s sentencing.

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it is “clear” or “obvious” that assault by strangulation is not
a crime of violence. See Olano, 507 U.S. at 734.
3.
In support of his contention that assault by strangulation
is not a crime of violence, McMillian relies on our recent
decision in United States v. Vinson, 805 F.3d 120 (4th Cir.
2015). In Vinson, we recognized that the “assault” element of
North Carolina’s assault offenses does not require the use or
attempted use of physical force, because a defendant can commit
an assault under North Carolina law by recklessly or carelessly
applying physical force. Id. at 125-26 (citing State v. Jones,
538 S.E.2d 917, 923 (N.C. 2000)). Under the law of this
circuit, the negligent or reckless application of force does not
constitute the “use” of force. See id. at 125 (citing Garcia v.
Gonzales, 455 F.3d 465, 469 (4th Cir. 2006)). Our Vinson
decision does not control in this case, however, because the
assault element addressed therein is only one element of the
offense of assault by strangulation. As relevant here, Vinson
did not consider whether the infliction of physical injury by
strangulation — the other element of assault by strangulation —
entails the use of physical force.
McMillian contends, as he must, that one can inflict injury
by strangulation without using physical force. In the context
of plain error review, we are content to assume that there is

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some scenario in which a person could commit an assault by
strangulation without intentionally applying physical force, and
thus that the first prong of Olano has been satisfied. See
United States v. Godwin, 272 F.3d 659, 679 (4th Cir. 2001)
(assuming that error was committed, so as to satisfy first prong
of Olano). It is apparent, however, that McMillian has failed
to show that the assumed error is plain, as required by the
second prong of Olano. Indeed, he has identified no authority —
state or federal — supporting his position that one can inflict
physical injury by strangulation without using physical force.
Cf. United States v. King, 628 F.3d 693, 700 (4th Cir. 2011)
(rejecting claim of plain error where defendant identified no
“binding precedent supporting” his position). Nor has he
offered any plausible counterexample to the proposition that
assault by strangulation requires the use of physical force.6 We
6 At oral argument, McMillian offered two examples to
support his contention that assault by strangulation can be
committed without the use of physical force. His first
hypothetical involves erotic asphyxiation, a practice in which
the supply of oxygen to the brain is restricted to increase
sexual gratification. McMillian’s second hypothetical posits a
police officer who uses a chokehold to subdue a suspect, but
recklessly employs excessive force in doing so. McMillian’s
hypotheticals both fail, however, because they involve the
intentional application — i.e., the use — of physical force.

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are therefore satisfied that McMillian has failed plain error
review.7
C.
In his final contention of error, McMillian faults the
district court for failing to adequately explain the sentence it
imposed. In particular, McMillian insists that the court did
not “address [his] nonfrivolous arguments for a lower sentence.”
See Br. of Appellant 26.8
A district court sentencing a defendant for a supervised
release violation must “adequately explain [its] chosen
sentence.” See United States v. Thompson, 595 F.3d 544, 547
(4th Cir. 2010) (internal quotation marks omitted). The failure
to do so constitutes procedural error. See id. The court’s
7 McMillian also contends that the offense of assault by
strangulation is not punishable by more than a year in prison.
That contention is without merit. Since the North Carolina
legislature enacted the Justice Reinvestment Act in 2011, all
North Carolina felony offenses — including assault by
strangulation — are subject to a maximum term of imprisonment of
at least thirteen months, “regardless of offense class or prior
record level.” See United States v. Barlow, 811 F.3d 133, 137
(4th Cir. 2015).
8 We are satisfied that McMillian preserved his contention
that the district court failed to adequately address his
arguments for a lower sentence. See United States v. Lynn, 592
F.3d 572, 578 (4th Cir. 2010) (“By drawing arguments from § 3553
for a sentence different than the one ultimately imposed, an
aggrieved party sufficiently alerts the district court of its
responsibility to render an individualized explanation
addressing those arguments, and thus preserves its claim.”).

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explanation, however, “need not be as detailed or specific when
imposing a revocation sentence as it must be when imposing a
post-conviction sentence.” Id. (internal quotation marks
omitted). Moreover, as we recognized in United States v.
Montes-Pineda, “in determining whether there has been an
adequate explanation, we do not evaluate a court’s sentencing
statements in a vacuum.” See 445 F.3d 375, 381 (4th Cir. 2006).
Rather, “[t]he context surrounding a district court’s
explanation may imbue it with enough content for us to evaluate
both whether the court considered the § 3553(a) factors and
whether it did so properly.” Id.
Before it imposed the challenged sentence, the district
court expressly acknowledged McMillian’s contention that, apart
from the incidents underlying the revocation motion, he had
complied with the conditions of his release. See J.A. 92
(“That’s correct, it was a year and a half into his supervision
and Officer Cooper said he hadn’t had any problems while he had
a job, etc.”). The court then emphasized, however, that
McMillian had “a long history of this type of conduct . . . in
his past.” Id. Thus, the record demonstrates that the court
considered and rejected McMillian’s arguments for a lower
sentence, deeming his history of violent conduct to be of
greater significance. Moreover, other aspects of the record
confirm that McMillian’s history of violence was a primary

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concern of the court throughout the hearing. See id. at 87
(reciting McMillian’s criminal history, including numerous
assault convictions); id. at 96 (recommending that McMillian “be
exposed to the most intense anger management training and
education possible” while in prison). Accordingly, we also
reject McMillian’s contention that the court inadequately
explained its chosen sentence.
III.
Pursuant to the foregoing, we reject McMillian’s
contentions of error and affirm the judgment.
AFFIRMED

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