                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4488


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GENE PATRICK,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00332-TDS-1)


Submitted:   December 14, 2012             Decided:   January 10, 2013


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


Affirmed by unpublished per curiam opinion.


Robert Ratliff, Mobile, Alabama, for Appellant.      Ripley Rand,
United States Attorney, Stephen T. Inman, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Gene   Patrick      appeals      the     district    court’s      order

revoking his probation and sentencing him to twelve months of

imprisonment.        Patrick claims that his current sentence, when

aggregated with the time he spent imprisoned as a condition of

his    probation,      exceeds       the     applicable     statutory       maximum.

Finding no error, we affirm.

              First, because Patrick did not properly preserve any

of the issues he raises on appeal, our review is for plain

error.   Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.

725, 732 (1993); see United States v. Maxwell, 285 F.3d 336, 338

(4th Cir. 2002) (reviewing for plain error unpreserved claim

that   sentence      following    revocation      of    supervised      release   was

greater than authorized by statute).                   To satisfy this standard

Patrick must show: “(1) an error was made; (2) the error is

plain; and (3) the error affects substantial rights.”                          United

States   v.    Massenburg,     564    F.3d     337,    342-43   (4th    Cir.   2009).

Even if Patrick satisfies these requirements, correction of the

error is only appropriate if it “seriously affects the fairness,

integrity      or    public      reputation      of     judicial       proceedings.”

Massenburg, 564 F.3d at 343 (internal quotation marks omitted).

              The magistrate judge who initially sentenced Patrick

was authorized to impose a term of probation of up to five



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years, 18 U.S.C. § 3561(c)(2) (2006), and to include a number of

discretionary conditions, including that Patrick

      remain in the custody of [the Bureau of Prisons]
      during nights, weekends, or other intervals of time,
      totaling no more than the lesser of one year or the
      term of imprisonment authorized for the offense,
      during the first year of the term of probation or
      supervised release.

18    U.S.C.     § 3563(b)(10)           (2006).            Further,        upon     Patrick’s

violation      of    his    probation,        the     court       could     either    continue

Patrick’s      probation          with   or     without          extending    the     term   or

modifying the conditions or revoke Patrick’s term of probation

and resentence him.           18 U.S.C. § 3565(a) (2006).                    After choosing

to revoke Patrick’s probation following his second violation of

its conditions, the court was required to “resentence” him under

“subchapter A,” 18 U.S.C. §§ 3551-59 (2006), which outlines the

general statutory provisions for imposing sentence.                                  18 U.S.C.

§ 3565(a)-(b).

            As      we     have    previously        held,        resentencing       under   18

U.S.C. § 3565(a)-(b) “plainly permits a district court to begin

the    sentencing          process       anew       and     to     impose     any     sentence

appropriate         under    the    provisions         of    subchapter       A.”       United

States v. Schaefer, 120 F.3d 505, 507 (4th Cir. 1997); see also

United States v. Tschebaum, 306 F.3d 540, 543-44 (8th Cir. 2002)

(collecting         cases).          Accordingly,           upon     revoking        Patrick’s

probation, the district court was permitted to sentence him to


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any   term    of     imprisonment           within       the    twelve          month    statutory

maximum      for     his    original        violation          of    21     U.S.C.       § 844(a).

United States v. Penn, 17 F.3d 70, 73 (4th Cir. 1994); see also

United    States      v.    Ray,      484    F.3d       1168,       1172    (9th        Cir.    2007)

(“[C]ircuits         have     been    unanimous          in     concluding,         even        after

Booker, that a sentencing court may sentence a defendant who

violates     probation        without        being       restricted         by     the    original

Sentencing Guidelines range applicable to his or her crime or a

departure therefrom, subject at the upper end to the maximum

statutory     penalty       that     may     be       imposed       for    commission          of    the

underlying offense.”) (internal quotation marks omitted).

              Further, Patrick has failed to cite any authority to

support    his      contention        that    the       district          court’s       sentencing

options were limited by the time he spent in the Bureau of

Prisons’ custody as a condition of his probation.                                       First, the

court clearly modified Patrick’s probation following his initial

violation.         Patrick’s claim that this modification was in fact a

revocation of his probation is not supported by the record.                                         Nor

is Patrick’s citation to 18 U.S.C. § 3583(e)(3) (2006) relevant

to our inquiry here.            Finally, and although we generally do not

consider arguments raised for the first time in a reply brief,

United States v. Brooks, 524 F.3d 549, 556 n.11 (4th Cir. 2008),

the   district        court     was    without          authority          to    grant     Patrick

sentencing         credit     under    18     U.S.C.       § 3585(b)            (2006).             Thus

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Patrick’s reliance on the dicta of United States v. Granderson,

511 U.S. 39 (1994), is unpersuasive.             United States v. Wilson,

503 U.S. 329, 333 (1992).

            Accordingly, we conclude that the district court did

not err in imposing Patrick’s sentence and affirm the judgment

below.     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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