                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4385


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FREEDOM BORN DIVINE, a/k/a Rico Rivers,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.    Mark S. Davis, District
Judge. (2:11-cr-00168-MSD-TEM-1)


Submitted:   November 6, 2013             Decided:   December 3, 2013

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


Affirmed by unpublished per curiam.


Michael S. Nachmanoff, Federal Public Defender, Richard J.
Colgan, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Norfolk, Virginia, for Appellant.     Neil H.
MacBride,  United  States   Attorney,  V.   Kathleen   Dougherty,
Assistant  United  States   Attorney,  Norfolk,   Virginia,   for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Freedom Born Divine appeals the fifteen-month sentence

imposed upon the revocation of his supervised release term.                     On

appeal,      Divine    asserts     that       his   revocation     sentence    was

procedurally unreasonable, because the court erred in concluding

that   his    most    serious     violation—possession       of    marijuana—was

properly     classified      as   a   Grade     B   violation.       Finding     no

reversible error, we affirm.

             Generally,     we    will    affirm    a   sentence   imposed     upon

revocation of supervised release unless the sentence is “plainly

unreasonable.”        See United States v. Crudup, 461 F.3d 433, 437

(4th Cir. 2006).           We first determine whether the sentence is

unreasonable, applying the same general inquiry used to assess

the reasonableness of original sentences.                 Id. at 438.     If the

sentence is found unreasonable, we must determine whether it is

“plainly” so, relying on the same definition of “plain” applied

when   conducting      a   plain-error        analysis.     United    States    v.

Thompson, 595 F.3d 544, 547-48 (4th Cir. 2010).

             Because Divine did not challenge in the district court

the characterization of his possession-of-marijuana violation as

a Grade B violation, we review the issue for plain error.                       See

United States v. Bennett, 698 F.3d 194, 199 (4th Cir. 2012),

cert. denied, 133 S. Ct. 1506 (2013).               To establish plain error,

Divine must show (1) an error occurred, (2) the error was plain,

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and   (3)    the   error   affected      his    substantial        rights.         United

States v. King, 628 F.3d 693, 699 (4th Cir. 2011).                          Even if he

makes this showing, we will exercise our discretion to reverse

“only if the error seriously affects the fairness, integrity or

public reputation of judicial proceedings.”                        United States v.

Powell, 680 F.3d 350, 358 (4th Cir.) (internal quotation marks

omitted),     cert.     denied,    133   S.     Ct.       376   (2012).      “The    term

‘plain’ error is synonymous with ‘clear’ or ‘obvious’ error.                           An

error is plain if the settled law of the Supreme Court or this

circuit establishes that an error has occurred.”                          United States

v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (some internal

quotation     marks     omitted;    citations       omitted);      see     also    United

States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012) (“[W]here

we    have   yet   to   speak     directly     on     a    legal   issue     and    other

circuits are split, a district court does not commit plain error

by following the reasoning of another circuit.”).

             Divine asserts that the district court plainly erred

in classifying his marijuana possession as a Grade B violation,

rather than a Grade C violation.               Grade A violations include

       conduct constituting (A) a federal, state, or local
       offense punishable by a term of imprisonment exceeding
       one year that (i) is a crime of violence, (ii) is a
       controlled   substance  offense,   or  (iii)  involves
       possession of a firearm or destructive device of a
       type described in 26 U.S.C. § 5845(a); or (B) any
       other federal, state, or local offense punishable by a
       term of imprisonment exceeding twenty years.


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U.S. Sentencing Guidelines Manual (“USSG”) § 7B1.1(a)(1), p.s.

(2003).        Grade B violations include “conduct constituting any

other federal, state, or local offense punishable by a term of

imprisonment         exceeding         one   year.”      USSG      § 7B1.1(a)(2),           p.s.

Grade     C    violations        include       conduct       constituting        any    other

criminal offense punishable by a year or less of imprisonment or

any other violation of a supervised release condition.                                      USSG

§ 7B1.1(a)(3), p.s.               “The grade of violation does not depend

upon the conduct that is the subject of criminal charges or of

which   the     defendant         is    convicted       in    a   criminal       proceeding.

Rather,       the    grade   of    the       violation       is   to   be   based      on    the

defendant’s actual conduct.”                 USSG § 7B1.1 cmt. n.1.

               The    parties      agree      that     Divine’s        conduct    would          be

punishable as a federal offense under 21 U.S.C. § 844(a) (2012),

which     criminalizes           the     simple      possession        of   a    controlled

substance.           A person who violates this provision and has no

prior drug conviction is subject to a maximum sentence of one

year of imprisonment.              Id.       However, a person who violates this

provision      and     has   a    prior      drug     conviction       is   subject         to    a

sentence of fifteen days’ to two years’ imprisonment.                            Id.

               Although      Divine’s        criminal    history       reveals     at   least

one prior controlled substance conviction, he asserts that this

prior conviction is not “conduct” relevant in determining the

classification for his supervised release violation.                              He relies

                                               4
upon both Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and

United States v. Simmons, 649 F.3d 237, 243 (4th Cir. 2011) (en

banc), to argue that the court could not consider the recidivist

enhancement for his hypothetical § 844(a) offense because the

Government     was    unable    to    comply    with   the   protections   of    21

U.S.C. § 851 (2012) in the context of a revocation proceeding.

He also identifies authority affirming revocation sentences for

simple possession violations that were classified as Grade C

violations.

              In response, the Government argues that the district

court did not err in classifying Divine’s offense as a Grade B

violation, as Divine was eligible for the recidivist enhancement

due to his prior conviction, and § 851 notice requirements are

inapplicable in the supervised release context.                   The Government

also distinguishes Carachuri-Rosendo and Simmons and identifies

unpublished cases affirming revocation sentences in which simple

possession violations were classified as Grade B violations.

              Ultimately, we need not resolve this dispute, as any

error   by    the    district    court   was    not    “plain.”    The   district

court’s      conclusion   that       Divine’s   marijuana    possession    was    a

Grade B offense is supported by unpublished authority from this

circuit, e.g., United States v. Jemerson, 132 F. App’x 488, 489-

90 (4th Cir. 2005) (No. 04-5008); United States v. Justice, 70

F. App’x 719, 720 (4th Cir. 2003) (No. 03-4388), as well as

                                          5
authority from other circuits, see United States v. Trotter, 270

F.3d   1150,   1154     (7th     Cir.    2001)       (recognizing     that,     when

determining whether defendant’s conduct is punishable by more

than one year of imprisonment in context of supervised release

revocation,    “court    must    determine         whether    the   conduct   is   a

felony (etc.) after prior convictions are taken into account”);

United States v. Crace, 207 F.3d 833, 837-38 (6th Cir. 2000)

(permitting court to consider prior convictions when determining

whether conduct was properly classified as Grade B violation);

United States v. Seiber, 516 F. App’x 208, 214-16 (3d Cir. 2013)

(No. 12-2523) (rejecting argument, under Carachuri-Rosendo, that

§ 851 notice was required to apply recidivist enhancement when

determining    possible        penalty       for     simple     possession,     and

concluding recidivist simple possession is Grade B violation);

United States v. Jackson, 510 F. App’x 149, 155-56 (3d Cir.)

(No.   12-2390)     (rejecting      argument        that      supervised   release

violation based on simple possession could not be Grade B felony

unless Government filed § 851 information), cert. denied, 133 S.

Ct. 1477 (2013).      Moreover, to the extent Carachuri-Rosendo and

Simmons may provide support for Divine’s conclusion that his

conduct was a Grade C violation, they do not clearly compel that

conclusion,    as   they   do    not     address     drug     possession   in   the

context of revocation proceedings.                 Thus, while this circuit’s

unpublished    authority       finding    simple      possession     offenses      as

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Grade B violations predates both Carachuri-Rosendo and Simmons,

neither Carachuri-Rosendo nor Simmons so clearly abrogates the

court’s prior reasoning as to require reversal for plain error.

The district court’s classification of Divine’s conduct as a

Grade B offense therefore did not run afoul of any settled law

and was not obviously incorrect under available authority.

          Because   Divine   cannot   demonstrate   plain   error,   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 this court and argument would

not aid the decisional process.



                                                              AFFIRMED




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