652 F. App'x 186
4th Cir.2016Background
- McMillian was sentenced in federal court in 2012 to 46 months imprisonment and three years’ supervised release; release began January 2014 with a condition prohibiting new crimes.
- In Feb.–Mar. 2015 he was arrested on Columbus County, NC charges including assault by strangulation, kidnapping, larceny of a motor vehicle; those state charges were later dismissed after the victim recanted.
- Probation officer moved to revoke supervised release; at the revocation hearing the government introduced the victim’s earlier written statement, the mother’s statement, a deputy’s testimony, and ER records showing subconjunctival hemorrhage and possible finger fracture; the victim testified recanting her prior statements.
- The district court found by a preponderance of the evidence that McMillian had committed assault by strangulation and probable motor-vehicle larceny, classified the violation as Grade A, and — constrained by the 24‑month statutory maximum for revocation — sentenced McMillian to 24 months.
- McMillian appealed, arguing (1) insufficient evidence of assault by strangulation, (2) plain error in Guidelines computation because assault by strangulation is not categorically a "crime of violence," and (3) inadequate explanation of the revocation sentence.
Issues
| Issue | McMillian’s Argument | Government’s Argument | Held |
|---|---|---|---|
| Whether district court clearly erred in finding assault by strangulation | Evidence did not prove physical injury from strangulation (no neck bruising; victim’s statement attributes eye injury to being slapped) | Medical and testimonial evidence (victim’s earlier written statement, ER records showing subconjunctival hemorrhage and neck pain) support finding by preponderance | No clear error; finding upheld — evidence consistent with strangulation injury |
| Whether the court plainly erred in classifying the violation as Grade A (crime of violence) | Assault by strangulation is not categorically a "crime of violence" because one could inflict injury without "use" of physical force | The offense involves strangulation—an act requiring the use of physical force—and thus qualifies under the force clause | No plain error; defendant failed to show it was "clear" that the offense is not a crime of violence |
| Whether the advisory Guidelines range was miscalculated | Misclassification altered the applicable Revocation Table range (should be Grade B instead of A) | Court applied correct legal framework and, in any event, statutory max (24 months) replaced the higher range | No reversible procedural error; statutory maximum substituted, and sentence within substituted range |
| Whether the district court inadequately explained its 24‑month revocation sentence | Court failed to address nonfrivolous arguments for a lower sentence (good compliance while employed) | Court considered defendant’s compliance but emphasized long history of violent conduct and referenced §3553(a) factors | Explanation was adequate in context; court considered and rejected mitigation arguments |
Key Cases Cited
- United States v. Copley, 978 F.2d 829 (4th Cir. 1992) (preponderance standard for supervised-release revocation findings)
- United States v. Padgett, 788 F.3d 370 (4th Cir. 2015) (clear-error review of factual findings at revocation)
- United States v. Vinson, 805 F.3d 120 (4th Cir. 2015) (North Carolina assault can be committed recklessly, affecting categorical analysis)
- United States v. Garcia, 455 F.3d 465 (4th Cir. 2006) (reckless or negligent force does not constitute the "use" of force for force‑clause analysis)
- Olano v. United States, 507 U.S. 725 (1993) (plain‑error review framework for unpreserved claims)
- United States v. Crudup, 461 F.3d 433 (4th Cir. 2006) (standard for reviewing revocation sentences: look for procedural or substantive unreasonableness)
- United States v. Carthorne, 726 F.3d 503 (4th Cir. 2013) (plain‑error framework applied to Guidelines issues)
- United States v. Thompson, 595 F.3d 544 (4th Cir. 2010) (requirement that district court adequately explain revocation sentences)
- United States v. Montes-Pineda, 445 F.3d 375 (4th Cir. 2006) (contextual review of a court’s sentencing explanation)