                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5076



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


THELMIAH LEE, JR.,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Marvin J. Garbis, Senior District Judge.
(CR-00-477-MJG)


Submitted:   May 25, 2005                  Decided:   June 28, 2005


Before LUTTIG, WILLIAMS, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Peter R. Johnson, Assistant
Federal Public Defender, Sherri Keene, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant.     Allen F. Loucks,
United States Attorney, Barbara S. Skalla, Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

            Thelmiah Lee, Jr. appeals the district court’s judgment

revoking his supervised release and sentencing him to twenty-three

months in prison.        We affirm.

            We   review    a   district     court’s     decision    to     revoke   a

defendant’s supervised release for an abuse of discretion.                   United

States v. Pregent, 190 F.3d 279, 282 (4th Cir. 1999).                The district

court need only find a violation of a condition of supervised

release    by    a    preponderance   of     the   evidence.         18    U.S.C.A.

§ 3583(e)(3) (West Supp. 2004). Our review of the record convinces

us that, in the instant appeal, the district court did not abuse

its discretion.

            On appeal, Lee contends that the district court erred in

revoking   his       supervised   release     because    one   of    the    alleged

violations which the court considered in making its determination

-- his arrest and charge with driving without a license -- was not

a condition of his probation. A defendant on supervised release is

subject to the condition that he not “commit any federal, state or

local crime” during his term of supervision.                       See 18 U.S.C.

§ 3583(d) (2000).        Lee asserts that the term “commit” requires an

actual conviction of a crime.               The U.S. Sentencing Guidelines

Manual (“USSG”) § 7B1.1, cmt. (n.1) (2004), however, provides that:

     Under 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

                                      - 2 -
      whether or not the defendant has been the subject of a
      separate federal, state or local prosecution for such
      conduct.

Thus, there is no express requirement that a conviction is required

to prove that Lee committed a state crime.              See United States v.

Correa-Torres, 326 F.3d 18, 20 (1st Cir. 2003) (citing United

States v. Jolibois, 294 F.3d 1110, 1114 (9th Cir. 2002); USSG

§ 7B1.1, cmt. (n.1)) (“So long as the government could prove that

the appellant committed the proscribed acts, the terms of his

release   would     be   violated   even   in    the   absence   of   an   actual

conviction.”).

              Lee further contends that the district court erred in

revoking his supervised release, in part, on a violation for

submitting an untruthful probation report where the court’s finding

was   based    on   an   assumption,    and    not   actual   evidence     of   the

underlying facts.        We find that the evidence was sufficient that

the district court could reasonably conclude, by a preponderance of

the evidence, that Lee submitted a false statement in his monthly

report to his probation officer.               Moreover, the district court

found Lee’s violation of state law in connection with driving

without a license sufficient to establish a violation of the

conditions of Lee’s supervised release. Consequently, any arguable

error in connection with the finding that Lee submitted a false

monthly report was harmless because it did not affect the ultimate

sentence imposed or Lee’s substantial rights. See Fed. R. Crim. P.


                                       - 3 -
52(a); United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir.

2003) (finding that harmless error applied to supervised release

proceedings).

          Finally, Lee asserts that the violation petition failed

to satisfy the requirements of due process as it provided him with

insufficient notice of the alleged violation.    Because Lee failed

to raise this issue to the district court, or to show plain error

or a fundamental miscarriage of justice, we find he has waived the

issue on appeal.   See United States v. Olano, 507 U.S. 725, 732-37

(1993); Fed. R. Crim. P. 52(b).

          Accordingly, we 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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