                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 14-4895


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES THOMAS OXENDINE,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:08-cr-00051-JPJ-1)


Submitted:   September 29, 2015               Decided:   October 9, 2015


Before NIEMEYER and      THACKER,   Circuit    Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Christine Madeleine
Lee, Research and Writing Attorney, Roanoke, Virginia, for
Appellant.   Anthony P. Giorno, Acting United States Attorney,
Jean    B.   Hudson,    Assistant    United States   Attorney,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       James      Thomas   Oxendine        appeals     his   36-month     sentence     for

violation of his supervised release.                     Oxendine argues that his

revocation sentence is plainly unreasonable because the district

court used the wrong criminal history category in calculating

the policy statement range.                We affirm.

       After pleading guilty to aiding and abetting the possession

with       intent    to    distribute        cocaine     base,     in    violation       of

18 U.S.C. § 2 (2012) and 21 U.S.C. § 841 (2012), Oxendine was

sentenced in 2010 to 36 months in prison, to be followed by a 6-

year term of supervised release.                  Oxendine’s supervised release

commenced on January 14, 2011.                    While on supervised release,

Oxendine      committed      new     criminal     offenses,       to    which    he   pled

guilty in 2014.

       Also in 2014, Oxendine’s probation officer petitioned the

court to revoke Oxendine’s supervised release imposed on the

2010 conviction.           At the revocation hearing, Oxendine did not

contest      the     violation,      nor    did   he    object    to    the     probation

officer’s calculation of the applicable policy statement range

as 33 to 36 months’ imprisonment. *                    The Government, apparently

unaware      of     the   36-month    statutory        maximum,    advocated       for   a

       *
       Although the policy statement range provided a 33 to 41
month range, that range was limited by the 3-year statutory
maximum. 18 U.S.C. § 3583(e)(3) (2012).



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sentence of 41 months, and Oxendine sought a sentence below the

range.       The district court ultimately sentenced Oxendine to the

statutory maximum revocation sentence of 36 months.

       For    the     first      time    on    appeal,       Oxendine       challenges      the

calculation        of    the   policy      statement         range,   arguing        that   the

district      court      erred     in     utilizing         Oxendine’s       2014    criminal

history category of VI rather than his 2010 criminal history

category of V.            We review for plain error “a sentencing issue

that was not properly preserved in the district court.”                                 United

States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015).

“To satisfy plain error review, the defendant must establish

that:     (1) there is a sentencing error; (2) the error is plain;

and (3) the error affects his substantial rights.”                             Id.     “In the

sentencing context, the third prong . . . is satisfied if there

is a non-speculative basis in the record to conclude that the

district      court      would    have    imposed      a     lower    sentence       upon   the

defendant but for the error.”                       United States v. McLaurin, 764

F.3d     372,      388    (4th     Cir.       2014)     (internal          quotation     marks

omitted), cert. denied, 135 S. Ct. 1842, 1843 (2015).                                Moreover,

even if all three of these elements are satisfied, we should not

correct      the    error      “unless        the    error     seriously       affects      the

fairness,          integrity       or         public        reputation        of      judicial

proceedings.”            Aplicano-Oyuela,             792    F.3d     at     422     (internal

quotation marks omitted).

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       As the Government correctly concedes, the district court

erred in calculating Oxendine’s policy statement range based on

his 2014 criminal history category rather than his 2010 criminal

history category, and the error was plain.                         See U.S. Sentencing

Guidelines Manual, § 7B1.4 p.s., cmt. n.1 (2013) (directing use

of    criminal      history      category       as   “determined      at   the    time   the

defendant originally was sentenced to the term of supervision”).

The correct policy statement range was 30 to 36 months, rather

than    the    33    to    36    months    noted      in   the   probation        officer’s

violation report.           However, Oxendine fails to argue, and nothing

in the record indicates, any nonspeculative basis for concluding

that the district court would not have arrived at the same 36-

month sentence absent this error.

       Accordingly, we conclude that Oxendine’s challenge to his

revocation sentence cannot withstand plain error review as he

has    not    established        that     the    error     affected    his   substantial

rights.       We therefore affirm the district court’s judgment.                         We

dispense      with        oral   argument        because     the    facts        and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                                   AFFIRMED




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