                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4599


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

ANTHONY WYNN, a/k/a Twin,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:02-cr-00178-RAJ-7)


Argued:   March 25, 2015                  Decided:   May 20, 2015


Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.


Affirmed by published opinion. Judge Keenan wrote the opinion,
in which Judge Shedd and Judge Duncan joined.


ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Alexandria, Virginia, for Appellant.      V. Kathleen
Dougherty, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk,
Virginia, for Appellee.      ON BRIEF: Michael S. Nachmanoff,
Federal Public Defender, Richard J. Colgan, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Alexandria, Virginia, for Appellant.     Dana J. Boente, United
States Attorney, Alexandria, Virginia, Darryl J. Mitchell,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Norfolk, Virginia, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:

       In    this    appeal,    we   consider    whether      the    district      court

erred      in    determining,    based   on    the    defendant’s       status      as   a

recidivist drug offender, that certain drug offenses committed

during his supervised release were Grade B violations under the

United States Sentencing Commission’s advisory policy statements

for violations of probation and supervised release (the ”policy

statements”). 1       The defendant argues that his drug offenses while

on supervised release constituted lesser Grade C violations, and

that       the    district      court    improperly        applied      a       statutory

enhancement         for   recidivist     conduct      in     reaching       a    contrary

conclusion.

        We hold that the district court did not err in considering

the defendant’s prior offenses when determining the grade of his

supervised        release    violations       under    the     policy       statements.

Accordingly, we affirm the district court’s judgment.




       1
       As we have previously explained, “[r]ather than issue
guidelines to govern sentences for [violations of supervised
release and probation], the United States Sentencing Commission
chose instead ‘to promulgate policy statements only’ to give
courts ‘greater flexibility’ in devising revocation sentences.”
United States v. Crudup, 461 F.3d 433, 435 (4th Cir. 2006)
(quoting U.S.S.G. Ch.7, pt.A, introductory cmts. 1, 3(a)).


                                          2
                                             I.

      In   2003,       Anthony    Wynn       was     convicted        of    conspiracy       to

distribute and possession with intent to distribute heroin and

cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1).

The   district        court    sentenced       Wynn     to       a   150-month        term   of

imprisonment,         followed    by     a    five-year          period     of    supervised

release.         Among        other    things,       the     conditions          of    Wynn’s

supervised release required that Wynn refrain from unlawful use

of controlled substances and submit to drug testing as directed

by his probation officer.

      In   May     2014,      after     Wynn       began    serving        his    period     of

supervised       release,      his     probation       officer        filed      a    petition

alleging     that       Wynn     had     violated          the       conditions       of     his

supervision.          The amended petition contained numerous alleged

violations, including that Wynn had possessed marijuana on six

separate occasions between February 2014 and June 2014. 2

      During      a    supervised       release       revocation           hearing     in    the

district court, Wynn admitted that he possessed marijuana on the

several occasions alleged by the probation officer.                                  Based on

      2
       The petition and its addenda also included allegations
that Wynn drove a vehicle without a license, operated an
uninsured vehicle, and operated a vehicle with tinted windows.
The probation officer further alleged in the petition that Wynn
failed to submit monthly supervision reports, failed to
participate satisfactorily in substance abuse treatment, and
failed to provide timely notification to the probation officer
of an arrest.


                                               3
Wynn’s       admissions   and   the    probation    officer’s         testimony,     the

district court found that Wynn had violated the terms of his

supervision and, accordingly, revoked Wynn’s supervised release.

       The    probation    officer     calculated       a    term    of   imprisonment

under the advisory policy statements of between twenty-one and

twenty-seven        months.        This   calculation         was     based     on   the

probation officer’s conclusion that, due to Wynn’s prior drug

convictions,        his   marijuana    offenses     were      Grade       B   violations

because each offense was punishable by imprisonment of more than

one year under a recidivist enhancement. 3                     In the Presentence

Investigation Report (PSR), the probation officer noted that in

addition to the 2003 federal drug convictions for which Wynn was

sentenced in part to the five-year period of supervised release,

Wynn also had been convicted in various state courts of several

drug       offenses,   including    possession     of       heroin    and     possession

with       intent   to    distribute      heroin    in      2002,     possession      of

marijuana in 2000, possession of heroin in 1999, and possession

of cocaine and marijuana in 1994.



       3
       The district court also found that Wynn had committed the
other alleged violations of the conditions of his supervision.
Under the policy statements, however, where there are multiple
violations of the conditions of supervision, “the grade of the
violation is determined by the violation having the most serious
grade.”   U.S.S.G. § 7B1.1(b).   In this case, it is undisputed
that the Grade B violations involving possession of marijuana
carried the most serious grade.


                                           4
     Wynn disputed the probation officer’s conclusion that the

marijuana offenses during his supervised release were Grade B

violations.      He   argued   that   the   six   incidents      of    possessing

marijuana were Grade C violations, because the “basic penalty”

under federal law for simple possession of marijuana does not

exceed a one-year term of imprisonment.              Wynn asserted that in

determining the grade of his violations at a revocation hearing,

the district court was prohibited by the policy statements from

considering his prior convictions, which only were relevant to

determining his term of imprisonment at his original sentencing

hearing.   Wynn argued that absent any consideration of his prior

record, his violations were merely Grade C violations, which

would   yield    an    advisory   penalty        range   under        the   policy

statements of between eight and fourteen months’ imprisonment.

     The district court rejected Wynn’s argument, holding that

his recidivism directly affected the grade of his supervised

release violations, and that, therefore, his acts of possession

of   marijuana    constituted     Grade      B    offenses.           The    court

accordingly adopted the probation officer’s recommended penalty

range and sentenced Wynn to serve a term of twenty-four months’

imprisonment.    Wynn timely filed the present appeal.




                                      5
                                          II.

        Our review on appeal initially is confined to the question

whether the revocation sentence is unreasonable; if the sentence

is not unreasonable, the sentence will be affirmed. 4                              United

States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006).                           However,

if   we    conclude    that    the    revocation    sentence       is    unreasonable

either procedurally or substantively, we further must consider

whether the sentence is plainly unreasonable.                  Id.

      In    the    present    case,     Wynn    challenges     only     the    district

court’s procedural calculation of the advisory sentencing range.

Because     the    district     court’s        factual   findings        are   not    in

dispute,     the    sole     question    before    us    is   whether        the    court

properly     applied    a     statutory    enhancement        in   calculating        the

applicable policy statements range, a question of law that we

review de novo.        United States v. Dowell, 771 F.3d 162, 170 (4th

Cir. 2014).         Thus, we turn to consider whether the district

court     correctly    determined       that    Wynn’s   conduct        of   possessing

marijuana constituted Grade B, rather than Grade C, violations

under the policy statements.



      4
       Our review of supervised release revocation sentences
“follow[s]    generally   the   procedural    and   substantive
considerations that we employ in our review of original
sentences, . . . with some necessary modifications to take into
account the unique nature of supervised release revocation
sentences.” Crudup, 461 F.3d at 438-39.


                                           6
         Chapter         7       of       the    Guidelines            contains        three       grades     of

supervised release violations, only two of which are at issue in

this case.           See U.S.S.G. § 7B1.1(a).                           In general, a defendant’s

conduct         presents              a     Grade       B       violation         if    it       is    conduct

constituting a “federal, state, or local offense punishable by a

term of imprisonment exceeding one year.” 5                                         Id. § 7B1.1(a)(2).

In   contrast,               a    Grade          C     violation         is       defined        as    conduct

constituting: (1) “a federal, state, or local offense punishable

by   a       term   of       imprisonment              of   one    year       or    less;”       or    (2)    “a

violation           of       any          other       condition         of        supervision.”              Id.

§ 7B1.1(a)(3).

         Under      federal               law,       although     possession           of    a     controlled

substance by a non-recidivist defendant subjects that defendant

to   a       term    of          imprisonment            of      not    more       than      one      year,    a

recidivist           defendant                  is     subject         to     a     greater           term    of




         5
       However, such conduct rises to the level of a Grade A
violation if it constitutes

         (A) a federal, state, or local offense punishable by a
         term of imprisonment exceeding one year that (i) is a
         crime of violence, (ii) is a controlled substance
         offense, or (iii) involves possession of a firearm or
         destructive device of a type described in 26 U.S.C.
         § 5845(a); or (B) any other federal, state, or local
         offense punishable by a term of imprisonment exceeding
         twenty years.

U.S.S.G. § 7B1.1(a)(1).


                                                            7
imprisonment.     21 U.S.C. § 844(a).        Section 844(a) provides, in

relevant part, that a defendant

      may be sentenced to a term of imprisonment of not more
      than 1 year, . . . , except that if he commits such
      offense after . . . two or more prior convictions
      under this subchapter or subchapter II of this
      chapter, or two or more prior convictions for any
      drug, narcotic, or chemical offense chargeable under
      the law of any State, or a combination of two or more
      such offenses have become final, he shall be sentenced
      to a term of imprisonment for not less than 90 days
      but not more than 3 years, . . . .

Id.

      Wynn contends that under the Supreme Court’s decision in

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the district

court was prohibited from finding that the drug offenses that he

committed during supervised release were “punishable” under an

enhanced statutory penalty.         According to Wynn, the government’s

failure to file a notice under 21 U.S.C. § 851(a)(1), signifying

an intent to rely on Wynn’s prior convictions at his revocation

sentencing, precluded any consideration of those convictions in

computing his advisory sentencing range.

      We   find   no   merit   in   this   argument.   Section   851(a)(1)

states, 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.

                                       8
21 U.S.C. § 851(a)(1).              By its plain terms, this statute applies

only    to   the   sentencing        of    criminal   defendants     who      have    been

convicted of a crime following the “entry of a plea of guilty”

or a “trial.”          Id.     The statute does not contain any reference

to supervised release revocation proceedings.

       As the Supreme Court observed in Carachuri-Rosendo, Section

851 requires that during a criminal prosecution the government

“charge a defendant as a recidivist in the criminal information”

before seeking a recidivist enhancement.                   560 U.S. at 578.            The

Court    accordingly         held   that    the   availability      of   an    enhanced

sentence at the time of a prior conviction may not be considered

as   part    of    a    person’s      criminal       history   in   an     immigration

proceeding, when the government had not sought under Section 851

to pursue the enhancement at the original sentencing for the

criminal offense.             Id. at 578-80.           Thus, the import of the

Court’s holding was that the government was not permitted to

treat a criminal offense in an immigration proceeding as being

more serious than the offense was treated at the time of the

actual criminal prosecution.

       Contrary to Wynn’s position, nothing in the decision in

Carachuri-Rosendo suggests that Section 851 plays any role in a

supervised release revocation hearing, or prevents a district

court    from      considering        the     fact    of   a   defendant’s           prior

convictions during such a proceeding.                   Indeed, the very purpose

                                             9
of a supervised release revocation hearing is to determine the

gravity of the breach of trust committed by the defendant in the

context of the “conditional liberty” he was granted following

his conviction of the underlying offenses.                   See United States v.

Ward, 770 F.3d 1090, 1098 (4th Cir. 2014); Crudup, 461 F.3d at

437-38.     Thus, a determination of the gravity of a defendant’s

breach    of   trust,   as   reflected      by   the    sentencing      mandate      of

Section     844(a),     necessarily    requires         consideration         of    the

defendant’s       criminal      history      unencumbered         by     a     notice

requirement applicable to an original criminal prosecution.

     Wynn      next   argues,    however,    that      the   district    court      was

constrained to consider only the “basic” penalty imposed by the

statute   for    simple   possession      of     marijuana,     rather       than   the

penalty imposed by the statute for such acts committed by a

recidivist defendant.           In support of his position, Wynn relies

on Application Note 1 to U.S.S.G. § 7B1.1, which states that

     [u]nder 18 U.S.C. §§ 3563(a)(1) and 3583(d), a
     mandatory   condition  of   probation  and   supervised
     release is that the defendant not commit another
     federal, state, or local crime.    A violation of this
     condition may be charged whether or not the defendant
     has been the subject of a separate federal, state, or
     local prosecution for such conduct.      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.




                                       10
U.S.S.G. § 7B1.1 cmt. n. 1.                  Wynn focuses exclusively on the

final two sentences of the commentary, asserting that “actual

conduct” describes only conduct committed on supervised release

completely divorced from the defendant’s earlier conduct.                                    Id.

We disagree with Wynn’s argument.

       Viewed in context, the commentary that Wynn cites fails to

support   his       position.       Application       Note      1    instructs        that    in

grading a violation of supervised release, a district court may

consider not only conduct for which a defendant is prosecuted in

a criminal case, but all of a defendant’s conduct, “whether or

not the defendant has been the subject of . . . prosecution for

such conduct.”           Id.; see United States v. Trotter, 270 F.3d

1150,   1155      (7th     Cir.    2001)    (“Application           Note    1       tells    the

district judge to consider what the person on supervised release

did,    rather      than    what    crimes       he   has       been    charged        with.”

(emphases      in    original)).           Rather     than      limiting        a    district

court’s ability to consider a defendant’s conduct, Application

Note 1 suggests that district courts consider all conduct that

affects     the      maximum       penalties        for     a       supervised        release

violation.       See Trotter, 270 F.3d at 1155 (“A judge engaged in

real-offense        sentencing      does    not     ignore      prior      offenses         that

affect the maximum punishment; recidivist enhancements are part

of real-offense sentencing.”).



                                            11
       Accordingly, we hold that the district court did not err in

concluding     that   Wynn’s      prior    drug    convictions      increased       the

extent to which his marijuana offenses during supervised release

were    “punishable”      under    Section 844(a).          Thus,    the     district

court    correctly     determined         that     Wynn’s     multiple       acts   of

possessing marijuana during his supervised release constituted

Grade   B    violations    under    the    Guidelines’      Chapter      7   advisory

policy statements.



                                      III.

       For   these    reasons,     Wynn’s        revocation    sentence       is    not

unreasonable, and we affirm the district court’s judgment.



                                                                             AFFIRMED




                                          12
