                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-4308


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

TERRY LASHAVIOUS MCMILLIAN,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Malcolm J. Howard,
Senior District Judge. (7:11-cr-00102-H-1)


Argued:   May 12, 2016                      Decided:   June 15, 2016


Before KING and DIAZ, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.    Christopher
Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.    ON BRIEF: Thomas P. McNamara,
Federal Public Defender, Stephen C. Gordon, Assistant Federal
Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh,
North Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

        While      on    supervised         release         in   North    Carolina,      Terry

Lashavious McMillian was arrested and charged in state court

with various criminal offenses.                           Although those charges were

later dismissed, McMillian’s probation officer sought to revoke

supervised release on the facts underlying the state charges.

The     district         court   agreed,          revoked        McMillian’s       supervised

release,      and       sentenced     him    to       twenty-four      months    in    prison.

McMillian appeals the court’s revocation decision and sentence.

As explained below, we affirm.



                                               I.

                                               A.

        In December 2011, McMillian pleaded guilty in the Eastern

District      of    North    Carolina        to       a   conspiracy     offense      under 18

U.S.C. § 371.            In April 2012, the district court sentenced him

to    forty-six         months   in   prison          and   three   years   of     supervised

release.        As a condition of supervised release, McMillian could

not “commit another federal, state, or local crime.”                                  See J.A.

14. 1       In January 2014, McMillian was released from prison and

began serving his three-year term of supervised release.



        1
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.



                                                  3
      On March 1, 2015, McMillian was arrested and charged in

Columbus       County,     North      Carolina,            on     four     state       criminal

offenses:             “Damage       to      Real           Property”;          “Assault       by

Strangulation”; “Larceny of a Motor Vehicle”; and “Second Degree

Kidnapping.”         See J.A. 18, 37.           Three days later, as a result of

those charges, McMillian’s probation officer moved the district

court for revocation of supervised release.                             The motion alleged

that, on February 25 and 26, 2015, McMillian had assaulted Ashea

Covington — his girlfriend and the complaining witness — “by

holding her down on the ground and strangling her.”                                 Id. at 18.

He also “forced her into her car and drove around for several

hours    not    allowing      her   to     get       out,”      and    then    took    her    car

without her permission.             Id.

      Covington       later      recanted           the    allegations        she     had    made

against     McMillian,        and    the        prosecutor        dismissed         the     state

criminal charges.         The revocation motion remained pending in the

district       court,    however,         and       on    May    28,     2015,      the     court

conducted       an    evidentiary         hearing         on     that    motion.            Three

witnesses testified:           Tyler Reeves, a sergeant with the Columbus

County    Sheriff’s      Office;         John       Cooper,      McMillian’s          probation

officer;       and    Covington.           Reeves         recounted       the    allegations

Covington had made against McMillian shortly after the assault,

and   authenticated        and      introduced            Covington’s         signed      written

statement, which detailed those events.                               Cooper authenticated

                                                4
and     introduced     the    written      statement       of    Pearl   Carter     —

Covington’s mother — concerning the assault.                     In her testimony,

Covington again repudiated the allegations she had made against

McMillian.       McMillian         did   not    testify,   but    introduced      into

evidence the dismissals of the state charges.

                                           B.

      The evidence at the hearing was that, on February 24, 2015,

McMillian showed up uninvited at the residence of Covington and

Carter. 2      When   Covington and Carter refused entry, McMillian

broke their glass storm door.

      The following day, McMillian and Covington had an argument,

which     escalated    to    physical     violence    when      McMillian   attacked

Covington.      After the assault, McMillian ordered Covington to

get in her car, and then drove her around Columbus and Bladen

Counties for several hours.               When McMillian stopped for gas —

which he bought with Covington’s debit card — he dared her “to

yell for help” and threatened to “beat her dead” if she did.

See J.A. 100.         McMillian eventually released Covington, but he

kept her car, her debit card, and one of her credit cards.

      Carter    called       the    Columbus     County    Sheriff’s     Office    to

report that her daughter had been assaulted.                      Sergeant Reeves,

      2We recite the facts in the light most favorable to the
government, as the prevailing party at the revocation hearing.
See United States v. Thum, 749 F.3d 1143, 1145 (9th Cir. 2014).



                                           5
who responded to the call, interviewed both Carter and Covington

on February 28, 2015.       He observed that Covington’s “whole [eye]

was bloodshot red” from a “busted” blood vessel.                       See J.A. 34-

35.    Covington told Reeves that she suffered the eye injury when

McMillian strangled her.           Reeves also took Covington’s written

statement, which reads, in pertinent part:

       [O]n Wednesday, February [25], 2015[,] [McMillian and
       I] exchanged words, after which [McMillian] jumped at
       me.   As I was knocked to the ground, I was choked
       nearly unconscious.   I urinated on myself.   He then
       sat on my chest and slapped me in my face several
       times resulting in a busted lip, busted blood vessels
       in right eye, swollen jaw. He also forced my fingers
       back nearly as far as they would go.    Eventually he
       allowed me up and told me to go wash my face up
       because my mouth was bleeding. He then took my entire
       set of keys and told me to go get in my vehicle and
       that he was driving. He said that if I tried anything
       crazy that he would beat me dead where I was despite
       location and company. He rode me around until the wee
       hours of the morning and took me back to my mother’s
       home.   He has refused to give me the keys back to my
       vehicle to this moment.

Id. at 99.

       At about 9:00 a.m. on March 2, 2015, Covington visited the

emergency room of the Columbus County Regional Medical Center,

complaining of pain around her temples and in the ring fingers

of both hands, as well as generalized body pain.                       She reported

to    the   medical   personnel     that      her   injuries     were    caused   by

McMillian’s assault about a week earlier, when he “strangled and

choked”     her,   kicked   her,    and       “slapped   [her]    in    [the]   face

multiple times.”      See J.A. 102, 110.            On physical examination, a

                                          6
physician assistant noted subconjunctival hemorrhage — a broken

blood    vessel   in   the     white   of    the      eyes.         An   x-ray    showed   a

possible hairline fracture of Covington’s left ring finger.                                A

splint was placed on each of Covington’s ring fingers, and she

was discharged from the hospital.

                                            C.

      After considering the evidence presented and argument from

counsel, the district court ruled that McMillian had violated

the terms of his release “by his criminal conduct, to include

assault and probable theft of a motor vehicle.”                            See J.A. 89.

Before     sentencing        McMillian,          the        court        explained       its

determination of the applicable Sentencing Guidelines range:

      The court believes that this is a grade A violation
      and the defendant has a criminal history category of
      roman numeral V. Under Chapter 7, it would be a 30 to
      37-month type of sentence available for the court to
      consider; however, there’s a [statutory] maximum of 24
      months.

Id.

      Relying     on   Covington’s      hearing        testimony,         in     which   she

repudiated her earlier version of the relevant events, McMillian

asked the district court to consider downgrading his supervised

release violation from grade A to grade C, based on the lesser

offenses of misdemeanor assault and unauthorized use of a motor

vehicle.        The    court    declined         to    do     so,    however,      finding

Covington’s exculpatory testimony “unreliable in its totality,”


                                            7
and    instead    crediting        her    earlier          inculpatory      statements     to

Sergeant Reeves and the hospital staff.                       See J.A. 91.         McMillian

also    sought    a   lenient       sentence          on    the   ground     that    he    had

otherwise     complied       with        the        conditions     of     his     supervised

release.     The court rejected that entreaty as well, explaining

that, although McMillian “hadn’t had any problems while he had a

job,” he also had “a long history of this type of conduct.”                                Id.

at 92.

       The   district       court    then       revoked       McMillian’s         supervised

release and sentenced him to twenty-four months in prison.                                 In

rendering     its     sentence,          the     court       explained      that     it   had

“considered the policy statements contained in Chapter 7 of the

U.S. Sentencing Guidelines as well as the other factors set out

in [18 U.S.C. § 3553(a)].”                See J.A. 95.            The court recommended

that,    while    incarcerated,          McMillian         “be    exposed    to     the   most

intense anger management training and education possible.”                                Id.

at    96.     Later       that   day,      the       court    entered       its    judgment.

McMillian     has     timely     appealed,           and     we   possess       jurisdiction

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.



                                               II.

       On appeal, McMillian presents three contentions of error.

First, he argues that the district court erred in finding that

he    committed     the    state    offense          of    assault   by     strangulation.

                                                8
Second, he contends that the court plainly erred in calculating

the    applicable       Sentencing        Guidelines        range.          Finally,     he

maintains      that     the    court     failed     to    adequately         explain     the

twenty-four        month      revocation      sentence.          We     address       those

contentions in turn.

                                            A.

       McMillian first contends that the district court erred in

finding that he committed the North Carolina offense of assault

by    strangulation.          The    government      responds     that       the    court’s

finding was supported by the evidence and thus was not clearly

erroneous.         To     revoke     a   defendant’s        supervised        release,    a

district court need only find by a preponderance of the evidence

that the defendant violated a condition of release.                           See United

States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992).                              We review

such a factual finding for clear error.                      See United States v.

Padgett, 788 F.3d 370, 373 (4th Cir. 2015).

       Assault by strangulation is proscribed by N.C. Gen. Stat.

§ 14-32.4(b),       which      provides     that     “any    person         who    assaults

another person and inflicts physical injury by strangulation is

guilty    of   a    Class     H    felony.”        The    elements     of     assault    by

strangulation       are      (1)    an   assault    and    (2)   the    infliction        of

physical    injury      by    strangulation.         See     State     v.    Little,     654

S.E.2d 760, 764 (N.C. Ct. App. 2008).



                                            9
     McMillian contends on appeal that the government failed to

show by a preponderance of the evidence that Covington suffered

any physical injury resulting from strangulation.           In support of

that contention, McMillian emphasizes the absence of evidence of

either redness or bruising around Covington’s neck.                Addressing

Covington’s eye injury, McMillian points to Covington’s written

statement, which attributes that injury to being slapped in the

face, rather than being strangled.

     The   evidence,    however,    proved   that   McMillian   had    choked

Covington almost to the point of unconsciousness, causing her to

lose control of her bladder.         As a result, Covington suffered a

subconjunctival hemorrhage — an eye injury that commonly occurs

as a result of either strangulation or a direct blow to the eye.

See State v. Lanford, 736 S.E.2d 619, 628 (N.C. Ct. App. 2013).

Although Covington reported being slapped across the face, there

is no evidence to suggest that McMillian struck her directly in

her eye.     Moreover, Covington complained of neck pain to the

medical    personnel    at    the   hospital.       Accordingly,      we   are

satisfied that the court did not clearly err in finding, by a

preponderance    of     the    evidence,     that   McMillian      strangled

Covington and thereby caused her to suffer a physical injury.

See State v. Lowery, 743 S.E.2d 696, 699 (N.C. Ct. App. 2013)

(finding   sufficient    evidence     presented     to   satisfy     physical



                                     10
injury    prong   of    assault   by    strangulation       where   evidence    of

injuries was consistent with strangulation). 3

                                         B.

     McMillian next contends — for the first time on appeal —

that the district court miscalculated the advisory Guidelines

range for his supervised release violation.                   Specifically, he

argues that the court misclassified assault by strangulation as

a “crime of violence” under the applicable Guidelines provision,

and thus overstated the severity of his violation.

     We   review    a   sentence       imposed   for   a    supervised   release

violation “to determine if it is ‘plainly unreasonable.’”                      See

United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006).                    In

making    that    determination,       “we    first    consider     whether    the

sentence imposed is procedurally or substantively unreasonable.”

See United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013).

As relevant here, procedural error in the sentencing context may

include improperly calculating the Guidelines range or failing

to adequately explain the chosen sentence.                 See United States v.

     3 McMillian also contends that the district court erred in
finding that he committed larceny with respect to Covington’s
car, insisting that the prosecutors failed to prove that he
intended to permanently deprive Covington of her vehicle. That
contention lacks merit. The evidence showed that McMillian took
Covington’s car without her consent and was yet in possession of
the vehicle when he was arrested almost a week later.    On that
evidence, the court was entitled to infer that McMillian
intended to keep the car and thus had committed larceny.



                                         11
Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013).                         If we conclude

that a sentence is unreasonable, we then consider whether it is

also “plainly unreasonable, relying on the definition of ‘plain’

that   we   use    in    our    ‘plain’      error   analysis,”         i.e.,    clear    or

obvious.     See Crudup, 461 F.3d at 439.

       An issue pursued on appeal but not preserved in the lower

court is reviewed for plain error only.                       See United States v.

Olano, 507 U.S. 725, 731-32 (1993).                  To satisfy that standard, a

defendant must show “(1) that an error was made; (2) that the

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

rights.”     See United States v. Carthorne, 726 F.3d 503, 510 (4th

Cir. 2013).         We will correct a plain error only when those

criteria are satisfied and doing so is necessary to prevent “a

miscarriage of justice” or to ensure “the fairness, integrity or

public reputation of judicial proceedings.”                        See United States

v.    Whitfield,    695    F.3d       288,    303    (4th   Cir.    2012)        (internal

quotation marks omitted).

                                             1.

       Chapter 7 of the Sentencing Guidelines addresses probation

and    supervised       release    violations.          The    advisory         Guidelines

range for a violation of a condition of supervised release is

determined    by    the        Revocation      Table    contained        in     Guidelines

section     7B1.4(a).           The    range      applicable       to     a     particular

defendant    depends       on    three       factors,   only    two      of     which    are

                                             12
relevant to these proceedings:           the defendant’s criminal history

category, as determined at the time the defendant was sentenced

to the term of supervision; and the grade of the supervised

release violation.       See USSG § 7B1.4(a). 4        If the range specified

by the Revocation Table is entirely above the statutory maximum

sentence   or    below   the    statutory      minimum   sentence,    then    the

statutory maximum or minimum sentence, respectively, “shall be

substituted for the applicable range.”                See id. § 7B1.4(b)(1),

(2).

       Guidelines section 7B1.1 creates three grades of supervised

release violations:       A, B, and C.        Grade A violations arise from

conduct constituting either an offense punishable by more than

twenty years in prison; or an offense punishable by more than

one year in prison “that (i) is a crime of violence, (ii) is a

controlled substance offense, or (iii) involves possession of a

firearm or destructive device.”              See USSG § 7B1.1(a)(1).        Grade

B   violations    encompass      all    conduct      constituting    any    other

offense    punishable     by   more    than    one   year   in    prison.     Id.

§ 7B1.1(a)(2).      All    other      supervised     release     violations   are

classified as grade C.         Id. § 7B1.1(a)(3).




       4
       We refer in this opinion to the 2014 edition of the
Sentencing Guidelines, the edition applicable to McMillian’s
sentencing for his supervised release violation.



                                        13
       Application      Note     2       to   Guidelines       section    7B1.1    explains

that    the    term    “crime       of    violence”       is   defined     in   Guidelines

section 4B1.2.         That section provides as follows:

       (a) The term “crime of violence” means any offense
       under federal or state law, punishable by imprisonment
       for a term exceeding one year, that —

              (1) has as an element the use, attempted
              use, or threatened use of physical force
              against the person of another, or

              (2) is burglary of a dwelling, arson,                          or
              extortion, involves use of explosives,                         or
              otherwise involves conduct that presents                        a
              serious potential risk of physical injury                      to
              another.

Paragraph      (a)(1)    of     section        4B1.2      is   commonly    known     as   the

“force clause,” and the portion of paragraph (a)(2) that starts

with “otherwise” is referred to as the “residual clause.”                                 See

United States v. Hemingway, 734 F.3d 323, 327 (4th Cir. 2013)

(employing      that    terminology           for   similar      statutory      provision).

In determining whether an offense is a crime of violence under

either       clause,    we    utilize         the    categorical         approach,     which

focuses solely on the elements of the offense, rather than on

the facts of the case.           See Carthorne, 726 F.3d at 511.

                                               2.

       The district court applied the foregoing legal framework

when     it    sentenced        McMillian           for    his     supervised        release

violation.       The court determined that McMillian had committed a

grade    A    violation       and    indicated         that      his   criminal      history


                                               14
category was V.         For such a defendant, the Revocation Table

specifies a Guidelines range of 30 to 36 months. 5                         As the court

also recognized, however, McMillian was subject to a statutory

maximum sentence of twenty-four months, pursuant to 18 U.S.C.

§ 3583(e)(3).             Accordingly,         under         Guidelines           section

7B1.4(b)(1),     the   twenty-four      month    statutory         maximum     sentence

was “substituted for the applicable range.”

     McMillian    contends       that   the    district         court      misclassified

his violation as grade A, and thereby miscalculated the advisory

Guidelines range.         Specifically, he maintains that assault by

strangulation is not categorically a crime of violence, and that

the court thus should have classified his violation as grade B

rather    than    grade     A.      Under       that       scenario,        McMillian’s

Guidelines     range   would     have    been        18    to    24     months.       The

government,      for      its    part,        maintains         that        assault    by

strangulation qualifies as a crime of violence under the force

clause of Guidelines section 4B1.2.

     As    McMillian      acknowledges,         he        failed      to    raise     this

contention in the district court.                As such, it is subject to

plain error review only, and McMillian must therefore show that



     5 At the revocation hearing, the district court misstated
the range provided by the Revocation Table in Guidelines section
7B1.4 as 30 to 37 months, rather than 30 to 36 months.      That
misstatement had no impact on McMillian’s sentencing.



                                         15
it is “clear” or “obvious” that assault by strangulation is not

a crime of violence.          See Olano, 507 U.S. at 734.

                                            3.

       In support of his contention that assault by strangulation

is    not   a   crime   of    violence,     McMillian   relies     on   our    recent

decision in United States v. Vinson, 805 F.3d 120 (4th Cir.

2015).      In Vinson, we recognized that the “assault” element of

North Carolina’s assault offenses does not require the use or

attempted use of physical force, because a defendant can commit

an assault under North Carolina law by recklessly or carelessly

applying physical force.             Id. at 125-26 (citing State v. Jones,

538    S.E.2d    917,   923    (N.C.    2000)).      Under   the     law      of   this

circuit, the negligent or reckless application of force does not

constitute the “use” of force.              See id. at 125 (citing Garcia v.

Gonzales,       455   F.3d    465,    469    (4th   Cir.   2006)).      Our    Vinson

decision does not control in this case, however, because the

assault element addressed therein is only one element of the

offense of assault by strangulation.                 As relevant here, Vinson

did not consider whether the infliction of physical injury by

strangulation — the other element of assault by strangulation —

entails the use of physical force.

       McMillian contends, as he must, that one can inflict injury

by strangulation without using physical force.                   In the context

of plain error review, we are content to assume that there is

                                            16
some       scenario   in   which    a   person       could      commit   an    assault     by

strangulation without intentionally applying physical force, and

thus that the first prong of Olano has been satisfied.                                    See

United       States   v.   Godwin,      272   F.3d       659,    679   (4th    Cir.   2001)

(assuming that error was committed, so as to satisfy first prong

of Olano).          It is apparent, however, that McMillian has failed

to show that the assumed error is plain, as required by the

second prong of Olano.             Indeed, he has identified no authority —

state or federal — supporting his position that one can inflict

physical injury by strangulation without using physical force.

Cf. United States v. King, 628 F.3d 693, 700 (4th Cir. 2011)

(rejecting claim of plain error where defendant identified no

“binding       precedent    supporting”            his   position).           Nor   has    he

offered       any   plausible      counterexample         to    the    proposition        that

assault by strangulation requires the use of physical force. 6                              We




       6At oral argument, McMillian offered two examples to
support his contention that assault by strangulation can be
committed without the use of physical force.           His first
hypothetical involves erotic asphyxiation, a practice in which
the supply of oxygen to the brain is restricted to increase
sexual gratification.   McMillian’s second hypothetical posits a
police officer who uses a chokehold to subdue a suspect, but
recklessly employs excessive force in doing so.       McMillian’s
hypotheticals both fail, however, because they involve the
intentional application — i.e., the use — of physical force.



                                              17
are therefore satisfied that McMillian has failed plain error

review. 7

                                       C.

     In     his   final   contention   of   error,   McMillian   faults   the

district court for failing to adequately explain the sentence it

imposed.      In particular, McMillian insists that the court did

not “address [his] nonfrivolous arguments for a lower sentence.”

See Br. of Appellant 26. 8

     A district court sentencing a defendant for a supervised

release     violation      must   “adequately    explain       [its]   chosen

sentence.”        See United States v. Thompson, 595 F.3d 544, 547

(4th Cir. 2010) (internal quotation marks omitted).              The failure

to do so constitutes procedural error.               See id.     The court’s



     7 McMillian also contends that the offense of assault by
strangulation is not punishable by more than a year in prison.
That contention is without merit.     Since the North Carolina
legislature enacted the Justice Reinvestment Act in 2011, all
North   Carolina  felony   offenses  —   including  assault   by
strangulation — are subject to a maximum term of imprisonment of
at least thirteen months, “regardless of offense class or prior
record level.”   See United States v. Barlow, 811 F.3d 133, 137
(4th Cir. 2015).
     8 We are satisfied that McMillian preserved his contention
that the district court failed to adequately address his
arguments for a lower sentence. See United States v. Lynn, 592
F.3d 572, 578 (4th Cir. 2010) (“By drawing arguments from § 3553
for a sentence different than the one ultimately imposed, an
aggrieved party sufficiently alerts the district court of its
responsibility   to   render    an   individualized   explanation
addressing those arguments, and thus preserves its claim.”).



                                       18
explanation, however, “need not be as detailed or specific when

imposing a revocation sentence as it must be when imposing a

post-conviction            sentence.”              Id.       (internal        quotation            marks

omitted).        Moreover,            as    we    recognized          in     United       States         v.

Montes-Pineda,            “in    determining            whether           there    has        been      an

adequate explanation, we do not evaluate a court’s sentencing

statements in a vacuum.”                   See 445 F.3d 375, 381 (4th Cir. 2006).

Rather,       “[t]he        context           surrounding             a     district              court’s

explanation may imbue it with enough content for us to evaluate

both   whether       the    court          considered         the    § 3553(a)        factors           and

whether it did so properly.”                     Id.

       Before   it        imposed      the       challenged         sentence,       the       district

court expressly acknowledged McMillian’s contention that, apart

from   the    incidents          underlying            the    revocation          motion,         he    had

complied     with     the       conditions         of       his     release.        See       J.A.       92

(“That’s correct, it was a year and a half into his supervision

and Officer Cooper said he hadn’t had any problems while he had

a   job,     etc.”).            The    court       then       emphasized,          however,            that

McMillian had “a long history of this type of conduct . . . in

his past.”          Id.     Thus, the record demonstrates that the court

considered      and        rejected         McMillian’s           arguments         for       a     lower

sentence,      deeming          his    history         of    violent        conduct       to       be    of

greater significance.                  Moreover, other aspects of the record

confirm      that    McMillian’s            history          of   violence        was     a       primary

                                                  19
concern of the court throughout the hearing.                       See id. at 87

(reciting      McMillian’s      criminal        history,      including    numerous

assault convictions); id. at 96 (recommending that McMillian “be

exposed   to    the     most    intense    anger      management      training   and

education   possible”      while    in    prison).          Accordingly,   we    also

reject    McMillian’s      contention          that   the     court    inadequately

explained its chosen sentence.



                                         III.

     Pursuant      to     the      foregoing,         we     reject     McMillian’s

contentions of error and affirm the judgment.

                                                                           AFFIRMED




                                          20
