                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT            FILED
                          ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               MARCH 8, 2012
                                No. 11-13109
                                                                 JOHN LEY
                            Non-Argument Calendar
                                                                  CLERK
                          ________________________

                   D.C. Docket No. 6:09-cr-00208-PCF-GJK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                      versus

MICHAEL AHEARN,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (March 8, 2012)

Before DUBINA, Chief Judge, TJOFLAT and EDMONDSON, Circuit Judges.

PER CURIAM:

      Appellant Michael Ahearn appeals the 24-month sentence imposed pursuant

to 18 U.S.C. § 3583(e)(3) upon the revocation of his supervised release. On
appeal, Ahearn argues that the district court plainly erred by determining that his

commission of batteries, in violation of FLA. STAT. § 784.03, were Grade A

violations of supervised release, rather than Grade C violations. He contends that,

while FLA. STAT § 784.03(2) makes battery a felony that would constitute a Grade

A violation where an offender has a prior conviction for battery, that section

requires that the prior conviction be a Florida conviction, and therefore his prior

Virginia conviction for assault and battery did not trigger that clause.

      We review for abuse of discretion a district court’s revocation of supervised

release. United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994). Plain error

review, on the other hand, applies when a defendant fails clearly to articulate a

specific objection during sentencing. United States v. Zinn, 321 F.3d 1084,

1087-88 (11th Cir. 2003). Under plain error review, the defendant must

demonstrate (1) error, (2) that was plain, (3) that affected substantial rights, and

(4) that seriously affected the fairness, integrity, or public reputation of judicial

proceedings. See, e.g., United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315

(11th Cir. 2005) (internal quotation marks omitted). “Under 18 U.S.C. § 3583(e), a

district court may, upon finding by a preponderance of the evidence that a

defendant has violated a condition of supervised release, revoke the term of




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supervised release and impose a term of imprisonment . . .” United States v.

Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006); see 18 U.S.C. § 3583(e)(3).

      Under the Sentencing Guidelines, “[w]here there is more than one violation

of the conditions of supervision, . . . the grade of the violation is determined by the

violation having the most serious grade.” See U.S.S.G. § 7B1.1(b). The

Guidelines provide that conduct constituting a federal or state offense that is a

“crime of violence” punishable by a term of imprisonment exceeding one year is a

Grade A violation, for which supervised release revocation is mandatory. U.S.S.G.

§§ 7B1.1(a)(1), 7B1.3(a)(1). Conduct constituting a federal or state offense

punishable by a term of imprisonment of one year or less is a Grade C violation.

U.S.S.G. § 7B1.1(a)(3). Where a defendant has an original criminal history

category of IV, the guideline range for a Grade C violation is 6 to 12 months’

imprisonment, while the guideline range for a Grade A violation is 24 to 30

months’ imprisonment. U.S.S.G. § 7B1.4(a). However, the statutory maximum

sentence upon revocation of supervised release in Ahearn’s case was 24 months’

imprisonment, as the offense for which supervised release was imposed was a

Class C felony. See 18 U.S.C. § 3583(e)(3) (providing that the statutory maximum

sentence upon revocation of supervised release is two years, when that supervised

release was imposed for a Class C felony); 18 U.S.C. § 3559(a)(3) (providing that


                                           3
a Class C felony is a felony where the maximum term of imprisonment is 10 or

more years but less than 25 years).

      Under Florida law, the offense of battery occurs when a person “[a]ctually

and intentionally touches or strikes another person against the will of the other; or .

. . [i]ntentionally causes bodily harm to another person.” FLA. STAT

§ 784.03(1)(a). Ordinarily, a person who commits battery commits a misdemeanor

of the first degree, punishable by a term of imprisonment up to one year. FLA.

STAT. §§ 784.03(1)(b), 775.082(4)(a). However, a “person who has one prior

conviction for battery, aggravated battery, or felony battery and who commits any

second or subsequent battery commits a felony of the third degree,” punishable by

a term of imprisonment up to five years. FLA. STAT. §§ 784.03(2), 775.082(3)(d).

      We conclude from the record that Ahearn has failed to establish error that is

plain. See Camacho-Ibarquen, 410 F.3d at 1315. It is not clear from the record

and case law whether Ahearn’s Florida batteries were Grade A violations of

supervised release. Research did not locate a decision by us, or any Florida court,

addressing whether FLA. STAT. § 784.03(2) applies to prior convictions in other

states. Therefore, Ahearn has failed to meet the first two prongs of the plain error

standard of review. See United States v. Marcus, 560 U.S. ___, ___, 130 S. Ct.

2159, 2164, 176 L. Ed. 2d 1012 (2010) (stating the second prong of plain error as


                                           4
error that is “clear or obvious, rather than subject to reasonable dispute”) (internal

quotation marks omitted); United States v. Castro, 455 F.3d 1249, 1253 (11th Cir.

2006) (providing that an error cannot be plain if it is not clear under current law, in

that there is no binding precedent from our Court or the Supreme Court).

Accordingly, we affirm Ahearn’s sentence.

      AFFIRMED.




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