                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5076


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MARCIL ANTONIO SMITH, a/k/a Tony, a/k/a Tony Smith, a/k/a
Fat Cat,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:95-cr-00081-F-1)


Submitted:   October 29, 2010            Decided:   November 19, 2010


Before WILKINSON, SHEDD, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant.   George E. B. Holding, United States Attorney, Anne
M. Hayes, Jennifer P. May-Parker, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Marcil        Antonio      Smith       appeals     the    thirty-six-month

sentence imposed by the district court upon revocation of his

supervised       release.         We        previously     vacated      a    sixty-month

revocation sentence and remanded for resentencing because the

district court upwardly departed from the five-to-eleven month

advisory     range     based      on     a    finding      that      Smith   had   twice

previously been accorded leniency during revocation proceedings

after the court found that Smith had engaged in criminal conduct

including the use of marijuana.                    Because the district court had

not found that Smith used marijuana and had found only one prior

violation     of    the    terms       of    his    supervision,       the    Government

conceded     error,    and       we    remanded      for     resentencing.         United

States v.     Smith,        No.       09-4246       (4th     Cir.     July    9,    2009)

(unpublished order).

            On remand, the district court again upwardly departed

from the advisory guideline range and explained its departure by

reference to the leniency that it twice afforded Smith and that

Smith continued to engage in criminal conduct.                         The court also

stated that Smith continued to disregard the conditions of his

supervision and that “no amount or level of supervision [ ]

could insure the safety of the community from the harms of this

defendant.”        The district court explained that the only criminal

conduct    for     which    it    found       a    violation    of    supervision    was

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Smith’s driving after his license was revoked.                                             However, the

court also relied on the fact that Smith had been in and out of

prison        since        age     16,       his        criminal          history          —        including

convictions          for    conspiracy          to        sell      and    deliver         cocaine          and

resisting       a    public       officer       —       and   the        leniency      allowed          when,

“[i]n 2007, Smith appeared before this court on two separate

occasions for revocation hearings.”

               On      appeal           from        the       thirty-six-month                  revocation

sentence, Smith contends that the district court made the same

error    after        remand       as    that       which        resulted       in     the          remand    —

erroneously         finding       that       the     court         had    twice      found          Smith    in

violation       of     his        supervised            release          and    yet     afforded            him

leniency by continuing his supervision.

               We will affirm a sentence imposed after revocation of

supervised          release       if    it     is    within         the    applicable               statutory

maximum       and     is    not    plainly          unreasonable.               United          States       v.

Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006).                                                   However,

only     if    we      conclude          that       a     sentence         is     procedurally               or

substantively unreasonable will we consider whether the sentence

is plainly unreasonable.                  Id. at 439.

               During       the    revocation             proceeding,           Smith      requested          a

sentence       within       the    advisory          guideline           range,       or       at    least    a

lesser departure.                Because Smith requested a sentence different

than    the    one     imposed,          any    error         by    the    district            court    must

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result in a reversal unless the error is harmless.                             See United

States v. Lynn, 592 F.3d 572, 580 (4th Cir. 2010).

             On    remand,    Smith’s       counsel       repeatedly         informed      the

district court that no violation was found during Smith’s second

revocation       hearing     in    2007.         In    providing       its    reasons      for

departing upward to thirty-six months, the district court stated

that Smith was twice afforded leniency in revocation proceedings

in   2007.        However,   the      district        court’s    overall      findings      in

support of the upward departure differed after remand from those

that resulted in the remand.                Notably, in the prior ruling, the

district court found that Smith had committed violations on two

prior occasions, with one being for use of marijuana.                               Based on

that finding and others, the district court departed upward to

sixty months.        Here, with slightly modified findings, but still

stating that the court twice afforded Smith leniency, the court

sentenced Smith to thirty-six months.

             In    light     of   the     totality       of     the    district      court’s

findings,    including       Smith’s       recidivism,          his    involvement        with

drugs, his lack of respect for authority, and the fact that he

received     a     significant        downward        departure       at     his    original

sentence, and the district court’s conclusion that “no amount or

level   of    supervision         [   ]    could      insure     the       safety    of   the

community from the harm of [Smith,]” we conclude that any error

by the court in stating that Smith was twice afforded leniency

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did not affect the length of his sentence, and therefore was

harmless.     Further, we hold that the thirty-six-month sentence

imposed upon Smith’s revocation was not clearly unreasonable,

especially when considered in light of the court’s findings and

the   fact   that   Smith   received    a    downward   departure   from   the

guideline range determined for his conviction on the underlying

offense.     See U.S. Sentencing Guidelines Manual           § 7B1.4, p.s.,

comment. (n.4) (“When the original sentence was the result of a

downward     departure      (e.g.,     as    a   reward   for   substantial

assistance), . . . an upward departure may be warranted.”).

             Accordingly, we affirm the thirty-six-month sentence

imposed by the district court.              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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