United States of America v. Marcus Wayne Covington

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4512
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS WAYNE COVINGTON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle District of North Carolina, at
Greensboro. William L. Osteen, Jr., District Judge. (1:08-cr-00495-WO-1)
Submitted: June 14, 2022 Decided: June 29, 2022
Before GREGORY, Chief Judge, and MOTZ and HARRIS, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
ON BRIEF: Brian M. Aus, BRIAN AUS, ATTORNEY AT LAW, Durham, North
Carolina, for Appellant. Sandra J. Hairston, United States Attorney, Veronica L. Edmisten,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Marcus Wayne Covington appeals his 33-month revocation sentence. Covington’s
counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
there are no meritorious grounds for appeal but questioning whether Covington’s
revocation sentence is plainly unreasonable. Covington filed pro se supplemental briefs
raising multiple challenges to the revocation judgment and to proceedings unrelated to the
revocation hearing. We ordered supplemental briefing on whether the district court plainly
erred in relying on the need to promote respect for the law, a disfavored factor under
18 U.S.C. § 3553(a)(2)(A), in sentencing Covington. We affirm but remand for correction
of a clerical error.
I.
To revoke supervised release, a district court need only find a violation of a
condition of supervised release by a preponderance of the evidence. 18 U.S.C.
§ 3583(e)(3). “[W]e review the district court’s revocation of supervised release for abuse
of discretion, evaluating the court’s legal conclusions de novo and its factual
determinations for clear error.” United States v. Patterson, 957 F.3d 426, 435
(4th Cir. 2020).
Revocation of supervised release is mandatory when, as relevant here, a defendant
“tests positive for illegal controlled substances more than 3 times over the course of 1
year.” 18 U.S.C. § 3583(g)(4). However, “when considering any action against a
defendant who fails a drug test,” the district court is required to “consider whether the
availability of appropriate substance abuse treatment programs, or an individual’s current

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or past participation in such programs, warrants an exception” from § 3583(g)’s
mandatory-revocation requirement. 18 U.S.C. § 3583(d); see United States v. Coston, 964
F.3d 289, 293-94 (4th Cir. 2020), cert. denied, 141 S. Ct. 1252 (2021).
Covington argues that revocation of his supervised release was not appropriate and
that the district court should have considered substance-abuse treatment under § 3583(d)
as an alternative. Our review of the record revealed that the district court considered
revocation to be the only appropriate option. The court observed that Covington tested
positive for illegal drugs on multiple occasions, despite the opportunities for treatment
offered to him. Accordingly, we conclude that the district court properly revoked
Covington’s supervised release.
II.
“A district court has broad discretion when imposing a sentence upon revocation of
supervised release. [We] will affirm a revocation sentence if it is within the statutory
maximum and is not plainly unreasonable.” Patterson, 957 F.3d at 436. Before deciding
“whether a revocation sentence is plainly unreasonable, [we] must first determine whether
the sentence is procedurally or substantively unreasonable,” id., evaluating “the same
procedural and substantive considerations that guide our review of original sentences” but
taking “a more deferential appellate posture than we do when reviewing original
sentences,” United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (cleaned up). “Only
if a sentence is either procedurally or substantively unreasonable is a determination then
made as to whether the sentence is plainly unreasonable—that is, whether the

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unreasonableness is clear or obvious.” Patterson, 957 F.3d at 437 (internal quotation
marks omitted).
Counsel and Covington both argue that the district court incorrectly concluded that
Covington’s violations were Grade B, rather than Grade C violations. Because Covington
did not raise this issue in the district court, we review the claim for plain error. See Coston,
964 F.3d at 294. To establish plain error, Covington must show “(1) an error, (2) that was
plain, and (3) that affected his substantial rights.” Id. If Covington makes that showing,
“we may exercise our discretion to correct the error if it seriously affects the fairness,
integrity or public reputation of judicial proceedings.” Id. (cleaned up).
The policy statement defines a Grade B violation as “conduct constituting [a]
federal, state, or local offense punishable by a term of imprisonment exceeding one year”
that does not qualify as a Grade A violation. U.S. Sentencing Guidelines Manual
§ 7B1.1(a)(2), p.s. Covington’s conduct does not amount to a Grade A violation. The
policy statement defines a Grade C violation as “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.” USSG § 7B1.1(a)(3), p.s. “The grade of 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.” USSG § 7B1.1 cmt. n.1, p.s.
In Violation 1, Covington admitted testing positive for marijuana, cocaine, or both
on multiple occasions. We have held that testing positive for a controlled substance is
enough to establish possession of the controlled substance. See United States v. Clark,

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30 F.3d 23, 25 (4th Cir. 1994). Simple possession of unknown quantities of marijuana and
cocaine is generally a misdemeanor under federal law. See 21 U.S.C. § 844(a). But, when
a defendant possesses marijuana or cocaine “after a prior conviction under this subchapter,”
he can be sentenced up to two years in prison, making the offense a felony. Id. Covington
had a prior conviction under this subchapter—possession with intent to distribute heroin.
Thus, his conduct constitutes a “federal, state, or local offense punishable by a term of
imprisonment exceeding one year” and qualifies as a Grade B violation. USSG
§ 7B1.1(a)(2), p.s.; see United States v. Wynn, 786 F.3d 339, 343-44 (4th Cir. 2015). We
therefore conclude that the district court did not err, plainly or otherwise, in determining
that Violation 1 is a Grade B violation.
We agree, however, that the district court incorrectly designated Violation 2—
failing to report for treatment and substance-abuse testing—and Violation 3—failing to
complete a four-day confinement sanction—as Grade B violations because they are in fact
Grade C violations. But this error did not affect Covington’s substantial rights because
“[w]here there is more than one violation of the conditions of supervision, . . . the grade of
the violation [for the purpose of calculating the policy-statement range] is determined by
the violation having the most serious grade.” USSG § 7B1.1(b), p.s. Covington’s most
serious violation was Violation 1, a Grade B violation, so the district court’s incorrect
designation of Violations 2 and 3 as Grade B violations made no difference in the
calculation of the policy-statement range.
Counsel also questions whether the district court adequately considered the
18 U.S.C. § 3553(a) factors and Covington’s arguments in mitigation. “A revocation

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sentence is procedurally reasonable if the district court adequately explains the chosen
sentence after considering the Sentencing Guidelines’ nonbinding Chapter Seven policy
statements and the applicable 18 U.S.C. § 3553(a) factors.” Coston, 964 F.3d at 297
(internal quotation marks omitted); see 18 U.S.C. § 3583(e) (listing applicable factors).
“[A]lthough the court need not be as detailed or specific when imposing a revocation
sentence as it must be when imposing a post-conviction sentence, it still must provide a
statement of reasons for the sentence imposed.” United States v. Slappy, 872 F.3d 202,
208 (4th Cir. 2017) (cleaned up). The district court must, at a minimum, explain the
sentence sufficiently to permit meaningful appellate review “with the assurance that the
court considered any potentially meritorious arguments raised by [the defendant] with
regard to his sentencing.” United States v. Gibbs, 897 F.3d 199, 205 (4th Cir. 2018)
(cleaned up).
We conclude that the district court thoroughly explained Covington’s sentence both
during its formal explanation and during its engagement with counsel and Covington
throughout the hearing. Although the court was not persuaded by the arguments in
mitigation, the court considered them and not simply in passing.
In response to our supplemental briefing order, counsel argues that Covington’s
sentence is plainly unreasonable because the district court relied on the need to promote
respect for the law, a disfavored factor under § 3553(a)(2)(A). In fashioning an appropriate
revocation sentence, “the court should sanction primarily the defendant’s breach of trust,
while taking into account, to a limited degree, the seriousness of the underlying violation
and the criminal history of the violator.” USSG ch. 7, pt. A(3)(B), p.s. While the court

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also must consider certain enumerated factors under § 3553(a), excluded from that list is
“the need for the sentence . . . to reflect the seriousness of the offense, to promote respect
for the law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A);
see id. § 3583(e). We have recognized, however, that “the factors listed in § 3553(a)(2)(A)
are intertwined with the factors courts are expressly authorized to consider under
§ 3583(e).” United States v. Webb, 738 F.3d 638, 641 (4th Cir. 2013). Thus, although the
district court may not base a revocation sentence “predominately” on the § 3553(a)(2)(A)
factors, “mere reference to such considerations does not render a revocation sentence
procedurally unreasonable when those factors are relevant to, and considered in
conjunction with, the enumerated § 3553(a) factors.” Id. at 642. Because Covington did
not object to the court’s reliance on a § 3553(a)(2)(A) factor, our review is for plain error.*
Id. at 640.
We conclude that the district court’s multiple references to Covington’s lack of
respect for the law is more troubling than counsel argues and less benign than the
Government contends. The court repeatedly emphasized Covington’s lack of respect for
the law throughout the hearing. Nevertheless, we conclude that Covington has not met his
burden of demonstrating “a reasonable probability that, but for the error, the outcome of
the proceeding would have been different.” United States v. Combs, ___ F.4th ___, ___,
* Counsel asserts that Covington waived any objections to the district court’s
findings. This is incorrect because waiver applies only when a party “identifies an issue,
and then explicitly withdraws it,” which did not occur here. United States v. Robinson,
744 F.3d 293, 298 (4th Cir. 2014) (internal quotation marks omitted).

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No. 21-4064, 2022 WL 2032295, at *4 (4th Cir. June 7, 2022) (internal quotation marks
omitted); see Webb, 738 F.3d at 642-43 (holding that appellant “failed to justify a remand
for resentencing” when he did “not argue[] that he would have received a lower sentence
had the district court not” considered § 3553(a)(2)(A) factors).
Having found no reversible procedural error, we turn to the substantive
reasonableness of Covington’s sentence. See United States v. Provance, 944 F.3d 213, 218
(4th Cir. 2019). “A revocation sentence is substantively reasonable if, in light of the totality
of the circumstances, the court states an appropriate basis for concluding that the defendant
should receive the sentence imposed.” Coston, 964 F.3d at 297 (internal quotation marks
omitted).
The district court was clear that Covington’s behavior on supervised release
breached the court’s trust, and it considered several appropriate § 3553(a) factors when
crafting Covington’s sentence, including the need to deter him from engaging in criminal
conduct, to afford him opportunities for rehabilitation, and to protect the public. The court
also addressed Covington’s arguments for a lesser sentence. Affording the necessary
deference to the district court, we conclude that Covington’s sentence is substantively
reasonable.
III.
Finally, we address the remaining claims in Covington’s pro se supplemental briefs.
We find no evidence that the district court displayed deep-seated antagonism or bias against
Covington to the extent that he was deprived of a fair hearing, and Covington’s challenges
to proceedings unrelated to the revocation hearing are not cognizable in this appeal. We

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decline to consider Covington’s ineffective-assistance-of-counsel claims in this direct
appeal. See United States v. Freeman, 24 F.4th 320, 331 (4th Cir. 2022) (en banc).
IV.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
However, because the revocation judgment improperly states that Covington committed
Violation 4, we remand so that the district court may correct this clerical error. See Fed.
R. Crim. P. 36. This court requires that counsel inform Covington, in writing, of the right
to petition the Supreme Court of the United States for further review. If Covington requests
that a petition be filed, but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Covington.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED AND REMANDED

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