                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5205



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


LARRY ANTHONY CONNIE,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-93-110)


Submitted:   November 30, 2006            Decided:   January 3, 2007


Before KING and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Devon L. Donahue,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Larry Anthony Connie appeals the district court’s order

imposing    the     statutory   maximum   sentence    of   sixty   months   of

imprisonment upon the revocation of his term of supervised release.

Although Connie does not contest the revocation on appeal, he

maintains that the district court’s sentence was unreasonable

because the court failed to provide an explanation for imposing the

statutory maximum sentence which was a significant departure from

the Chapter Seven policy statement range.            Connie also argues the

court’s sentence was premised on an improper calculation of the

policy statement range because one of the stated violations for

which he was found guilty, felony possession of cocaine, does not

qualify as a Grade A violation.           For the reasons that follow, we

affirm Connie’s sentence.

            Because Connie did not object to the district court’s

failure to articulate the reasons for its sentence, its policy

statement range calculations, or the sentence imposed, we review

for plain error.      United States v. Olano, 507 U.S. 725, 732 (1993);

United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005).            Under

the plain error standard, Connie must show: (1) there was error;

(2) the error was plain; and (3) the error affected his substantial

rights.    Olano, 507 U.S. at 732-34.       Even when these conditions are

satisfied, this court may exercise its discretion to notice the

error   only   if    the   error   “seriously   affect[s]    the   fairness,


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integrity or public reputation of judicial proceedings.”                     Id. at

736 (internal quotation marks omitted).

            We find Connie’s first argument, that the district court

erred in failing to give reasons for imposing the statutory maximum

sentence, without merit.         In United States v. Crudup, 461 F.3d 433

(4th Cir. 2006), we agreed with the Second Circuit’s statement in

United States v. Lewis, 424 F.3d 239 (2d Cir. 2005), that “a

court’s statement of its reasons for going beyond non-binding

policy     statements    in   imposing      a    sentence       after   revoking    a

defendant’s supervised release term need not be as specific as has

been required when courts departed from guidelines that were,

before [United States v.]Booker, [543 U.S. 220 (2005),] considered

to be mandatory.”       Crudup, 461 F.3d at 439 (quoting Lewis, 424 F.3d

at 245).    We have also held that a sentencing court is presumed to

have considered the factors set out in § 3553(a) unless the record

indicates otherwise, and that it need not specifically address each

factor.     United States v. Legree, 205 F.3d 724, 728-29 (4th Cir.

2000) (dealing with denial of motion to reduce sentence); see also

United States v. Eura, 440 F.3d 625, 632 (4th Cir. 2006) (“district

court need not explicitly discuss every § 3553(a) factor on the

record”), petition for cert. filed,               U.S.L.W.          (U.S. June 20,

2006) (No. 05-11659).

            In   this    case,    the    district       court    stated     that   it

considered    the   policy    statements        under   Chapter     Seven    of    the


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sentencing guidelines.          The record further reveals that the court

considered Connie’s children’s situation as well as Connie’s work

situation.       Moreover, the court had previously modified the terms

of    Connie’s    supervised        release    which    supports    a   sentence    of

imprisonment above the policy statement range.                      See 18 U.S.C.A.

§    3553(a)(2)(B)     (West    2000    &     Supp.    2006)   (listing     affording

adequate     deterrence        to    criminal     conduct      as   factor    to    be

considered).       Last, the probation officer informed the court that

it could consider the fact that it had previously reduced Connie’s

sentence pursuant to Fed. R. Crim. P. 35 as an adequate basis to

sentence     Connie    above    the    policy    statement     range.       See    U.S.

Sentencing Guidelines Manual § 7B1.4, p.s., comment. (n.4) (2004).

Given the court’s stated consideration of the factors and the

adequate support in the record for the court’s decision to sentence

Connie above the policy statement range, we find that Connie can

show no plain error in this regard.              See United States v. Johnson,

445   F.3d   339,     345    (4th    Cir.   2006)     (district     court   need   not

explicitly reference § 3553 or discuss every factor on the record).

             With respect to the calculation of the policy statement

range, the Government concedes on appeal that felony possession of

cocaine does not qualify as a Grade A violation and is instead a

Grade B violation.          The Government further concedes that, based on

a Grade B violation and a category III criminal history, Connie’s

advisory policy statement range should have been eight to fourteen


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months of imprisonment.            While the Government admits that the

incorrect calculation of the policy statement range was plain

error, it argues that Connie’s substantial rights were not affected

by the error.

            We find that, while the district court erred in its

guideline calculation, as conceded by the Government, Connie cannot

show that the error violated his substantial rights.                     It is well

established that, in contrast to original sentences, district

courts are given broad discretion to impose statutory maximum

revocation sentences.       Crudup, 461 F.3d at 439 & n.8.             “The risk of

a district court imposing an overly aggressive term of imprisonment

is greatly reduced in the revocation sentence context.”                       Id. at

n.8.

            In United States v. White, 405 F.3d 208 (4th Cir.), cert.

denied, 126 S. Ct. 668 (2005), employing a plain error analysis,

this    court   held    that   treating    the    sentencing       guidelines      as

mandatory was error under Booker and that the error was plain.                   Id.

at   216-17.     However,      with   respect    to   the   substantial       rights

inquiry, this court found that the statutory error of sentencing

White   under   a    mandatory     guidelines    regime     did    not   warrant    a

presumption     of     prejudice   and   required     White       to   show   actual

prejudice in order to establish his substantial rights had been

affected, i.e., the error must have affected the outcome of the

district court proceedings.           Id. at 217, 224.        We further noted


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that, under plain error review, the burden rests with the defendant

rather than the Government to prove that the error affected his

substantial rights.   Id. at 223.    We concluded that “the record as

a whole provides no nonspeculative basis for concluding that the

treatment of the guidelines as mandatory ‘affect[ed] the district

court’s selection of the sentence imposed.’”     Id. at 223 (quoting

Williams v. United States, 503 U.S. 193, 203 (1992)).

          We find that Connie fails to show that his substantial

rights were affected because he fails to show actual prejudice in

the district court’s imposition of the statutory maximum sentence

upon revocation of supervised release based on an incorrectly

calculated   policy   statement   range.    Connie   cannot   show   any

substantial likelihood that his sentence would have been any

different had the district court computed a lower advisory policy

statement range of imprisonment. In fact, here, the district court

determined that a sentence within the range of thirty to thirty-

seven months of imprisonment was insufficient and, therefore, it

imposed the statutory maximum.      Connie does not point to any non-

speculative basis for concluding that the district court would not

have arrived at the same sentence had it started at a lower range.

Because Connie fails to show his substantial rights were affected,

we conclude that he cannot establish plain error in the district

court’s erroneous computation of the policy statement range.         See

United States v. Brothers Constr. Co, 219 F.3d 300, 320 (4th Cir.


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2000) (rejecting claim that the imposition of a sentence under an

improper   guideline   range   necessarily   affects   a   defendant’s

substantial rights and requiring actual prejudice based on district

court’s improper calculation of fine range).

           Accordingly, we affirm Connie’s sentence.       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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