                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 14-4444


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

MICHAEL EUGENE HARDISON, a/k/a Hook Shot,

                Defendant – Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:95-cr-00083-BO-1)


Argued:   May 12, 2015                        Decided:   July 7, 2015


Before MOTZ, KING, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED:    Robert Earl Waters, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Raleigh, North Carolina, for Appellant.        Phillip
Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.    ON BRIEF: Thomas P. McNamara,
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, Kristine L. Fritz, 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Unpublished opinions are not binding precedent in this circuit.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:

       In    1996,      Michael     Eugene    Hardison       was   sentenced         in    the

Eastern District of North Carolina to 204 months in prison and

five years of supervised release, following his convictions for

drug-      and    gun-related      offenses.         Hardison      was    released        from

prison and began his term of supervised release in March 2010,

and   in    May       2013   the   district       court    ruled   that    Hardison        had

violated the conditions of his release by engaging in criminal

conduct relating to drug distribution.                       Supervised release was

therefore revoked, and the court imposed a statutory maximum

revocation sentence of sixty months.                      Hardison has appealed that

sentence,         contending       that      it     is     both    procedurally            and

substantively unreasonable.                As explained below, we affirm.



                                              I.

        Hardison’s       convictions       were    the     denouement     of    a    lengthy

federal investigation into a Fayetteville, North Carolina drug

distribution network known as the “Long Road Boys.”                                 Hardison

had cofounded the Long Road Boys in 1989, recruiting residents

of    the   Grove       View   Terrace      public    housing      project      to     peddle

powder cocaine and cocaine base (“crack”).                         From the network’s

inception,        Hardison     and    his    partners-in-crime           embarked         on   a

campaign         of    violence      and    intimidation       against         rival      drug

distributors to protect and expand their criminal enterprise.

                                              3
More specifically, Hardison instigated and perpetuated so-called

“turf wars” by arming his employees with semiautomatic weapons

and ordering them to shoot rival distributors.

       On   May    18,    1995,       a   federal    grand     jury     in    the   Eastern

District of North Carolina indicted Hardison and eleven other

Long    Road      Boys    on    twenty      drug    and   weapons       offenses.       The

indictment charged Hardison in five counts and identified him as

the group’s ringleader.               On September 11, 1995, Hardison pleaded

guilty      to    conspiracy         to   possess     with     intent    to     distribute

cocaine and crack, in violation of 21 U.S.C. § 846, and to using

a firearm during and in relation to a drug trafficking crime, in

contravention of 18 U.S.C. §§ 924(c)(1) and 2.                               On April 9,

1996, Hardison was sentenced to 204 months in prison, to be

followed by five years of supervised release.                           Hardison’s term

of     supervised        release      was     subject     to    several       conditions,

including that he submit to drug-screen urinalysis and refrain

from criminal conduct.                Hardison was released from confinement

in March 2010 and commenced his term of supervised release.

       On September 11, 2013, after serving more than three years

of   supervised      release         without    incident,      Hardison       submitted   a

urine    sample     that       was    positive      for   cocaine.        His    probation

officer     thus    filed      a     motion    to   revoke     Hardison’s       supervised

release.         On November 15, 2013, the district court conducted a

revocation hearing and determined that Hardison had violated the

                                               4
terms    of     his   supervision.        Nevertheless,       the    court    denied

revocation, determining that “the ends of justice would best be

served by . . . continuing supervision under the original terms

and conditions imposed.”          J.A. 27. 1

     On April 21, 2014, the probation officer filed a second

motion   for     revocation     of    supervised   release,        followed   by    an

amended motion two days later.                 The probation officer alleged

that Hardison had recently committed numerous drug and weapons

offenses in Cumberland County in violation of the terms of his

supervised release.           The probation officer did not, however,

submit a worksheet containing a recommended sentencing range for

Hardison.

     The district court conducted a second revocation hearing on

May 30, 2014, and the prosecution called Officer Aaron Hunt of

the Fayetteville Police Department as a witness.                    Hunt testified

that he first became aware of Hardison in early 2014 during the

course     of    a    narcotics      investigation.         Hunt    had   witnessed

Hardison        “continuously        hanging    out”   at     two     Fayetteville

residences where suspected drug activity was taking place.                         See

J.A. 15.        Hunt was informed that Hardison was the “main guy who

brought all the narcotics to [Hunt’s] target houses,” and he



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



                                          5
opened a formal investigation into Hardison’s activities.                               See

id. at 16.         Over the next six weeks, Hunt observed Hardison

engage in numerous hand-to-hand drug transactions with passing

vehicles.     On arresting one of the buyers, Hunt was advised that

the arrestee had purchased cocaine from Hardison.

       According        to    Officer      Hunt,     on     April    21,       2014,     the

Fayetteville       police       executed    a     search    warrant       on   Hardison’s

home,    seizing       several    items     inside       the   residence       that     were

“indicative of manufacturing and packaging narcotics for sale.”

See J.A. 18-19.          Officers also found 25.3 grams of crack and a

Colt    .38   special        revolver   hidden      in    plastic    bags      behind    the

residence.      Based on Hunt’s evidence, the district court ruled

that Hardison had violated the terms of his supervised release

by possessing with intent to sell and deliver cocaine and crack,

maintaining        a    place     for   the       manufacture       of    cocaine,       and

possessing a firearm.

       Hardison admitted his criminal conduct but offered several

arguments     in       mitigation,      seeking      a     lenient       sentence.        He

emphasized that he was nearing the end of his five-year term of

supervised release, and had only one prior violation.                             He also

asserted that he had been gainfully employed and had a close

relationship with his siblings.                   Finally, Hardison pointed out

that his employer was present at the hearing and had submitted a

letter on Hardison’s behalf.

                                              6
       The district court denied Hardison’s request for leniency,

invoking         Hardison’s     earlier      revocation     hearing.     The    court

explained:

       Did [Hardison] not understand that [the court’s prior
       leniency] was an exercise in trust, T-R-U-S-T, that
       the court was willing to take a chance, which turned
       out to be a foolish chance and a repudiated chance,
       and that the court and the government and the law put
       their trust in him to be sincere about his willingness
       to avoid crime and drugs and be a drug person.     And
       now he’s proven all of that to be mistaken.     So the
       punishment has to be equivalent to the breach of trust
       and multiple violations.

J.A.       22.     The   court    underscored        that   Hardison   had    made   an

“absolute mockery” of the supervised release system, id. at 24,

observing that

       [Hardison]   really  has  virtually  no   sympathy or
       position to argue here.   He’s completely without any
       credibility, just totally without any credibility. He
       had a serious sentence that he did and now he’s been
       back twice on revocation . . . .    He should get the
       maximum punishment.

Id. at 23.

       The       district     court   then        imposed   the   statutory    maximum

sentence of sixty months in prison. 2                   That same day, the court

entered a written order setting forth its rationale for imposing

the statutory maximum sentence.                    See United States v. Hardison,

No. 5:95-cr-00083 (E.D.N.C. May 30, 2014), ECF No. 402.                              The

       2
       Hardison’s statutory maximum revocation sentence was sixty
months because his conspiracy conviction was a class A felony.
See 18 U.S.C. §§ 3583(e)(3), 3559(a)(1).



                                              7
court explained therein that Hardison was charged with violating

the terms of his supervised release by engaging in the “same or

similar” conduct that had formed the basis of his underlying

convictions.            Id. at 2.       The court further noted that neither

the 204-month sentence nor the court’s prior leniency had been

sufficient         to    deter     Hardison      from    engaging   in     the    sale    of

illegal narcotics, and that the maximum sentence was needed to

protect      the    public       from   Hardison.         Id.     Finally,       the   court

considered         and     rejected        Hardison’s         various     arguments       in

mitigation.         Id.

        It is uncontested that the policy statements in Chapter

Seven       of    the    Sentencing       Guidelines       called   for     Hardison      to

receive       a    revocation       sentence        of   thirty-seven      to    forty-six

months in prison. 3          The district court, however, made no explicit

reference to that sentencing range during the revocation hearing

or in its subsequent order.                    Additionally, neither Hardison nor

the   government          argued    for    a    specific      revocation    sentence      or

referenced         the    policy    statement        range.      Hardison       failed   to

object to the revocation sentence imposed by the court.




        3
       Hardison’s policy statement range called for thirty-seven
to forty-six months in prison because he committed a Grade A
violation of his release and had a criminal history category of
IV. See USSG § 7B1.1(a)(1) (2012).



                                                8
       Hardison       has      timely          appealed,        contending       that      the

revocation        sentence         is    plainly       unreasonable.            We    possess

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

§ 1291.



                                                II.

       We are not to vacate a revocation sentence “if it is within

the     statutory      maximum          and    is     not    ‘plainly     unreasonable.’”

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

2013) (quoting United States v. Crudup, 461 F.3d 433, 438 (4th

Cir.    2006)).        The    proper      inquiry       first    assesses       whether    the

sentence was either procedurally or substantively unreasonable.

See Crudup, 461 F.3d at 438-39.                      If the sentence is unreasonable

on either ground, we must also identify whether it was “plainly”

so.    Id. at 439.

       Where a defendant fails to preserve a claim of error in the

sentencing court, we review the issue for plain error only.                               See

Webb, 738 F.3d at 640-41.                     To satisfy plain error review, the

appellant bears the burden of establishing that (1) the district

court       erred;   (2)     the    error       was    “plain”;    and    (3)    the     error

“affect[ed his] substantial rights.”                          United States v. Olano,

507 U.S. 725, 732 (1993).                 If the three-part plain error test is

satisfied, we must decide whether to cure the error, “and should

not    do    so   unless     the    error       ‘seriously      affects    the       fairness,

                                                 9
integrity       or     public      reputation          of     judicial          proceedings.’”

United       States     v.    Hargrove,         625    F.3d        170,     184       (4th    Cir.

2010) (quoting Olano, 507 U.S. at 736).



                                           III.

        On      appeal,         Hardison          challenges              the         procedural

reasonableness of his revocation sentence on the ground that the

district court failed to consider his policy statement range of

thirty-seven to forty-six months prior to imposing a maximum

revocation sentence of sixty months.                          Hardison also maintains

that the revocation sentence was substantively unreasonable, in

that the       court    failed      to   adequately          justify      its     decision     to

deviate from the policy statement range.

                                            A.

        In deciding whether to revoke a term of supervised release,

a district court is guided by policy statements contained in

Chapter       Seven    of    the   Guidelines,          as    well     as       the    statutory

factors        applicable          to     revocation              sentences           under    18

U.S.C. §§ 3553(a) and 3583(e).                   Chapter Seven instructs that a

court        should    fashion      a    revocation           sentence          to     “sanction

primarily the breach of [the court’s] trust.”                              USSG ch. 7, pt.

A(3) (2012).          Chapter Seven also provides for a policy statement

range that is calculated on the basis of the severity of the

underlying       violation         as    well     as        the    defendant’s          criminal

                                            10
history.        See id. § 7B1.4.            Section 3583(e) of Title 18, which

governs supervised release, further directs a court to consider

factors enumerated in § 3553(a) prior to imposing a revocation

sentence,       including      the    sentencing      range      established        by   the

applicable policy statements, the need to deter future criminal

conduct,    and     the       need    to    protect     the    public     from      further

criminal activity.            See 18 U.S.C. § 3553(a)(2)(B)-(C), (a)(4).

     Hardison       challenges        the    procedural       reasonableness        of   his

revocation sentence on the ground that the district court failed

to consider his policy statement range.                       Applying a plain error

standard of review, we first assess whether an error occurred ——

that is, was Hardison’s sentence procedurally unreasonable.                              The

Supreme Court has recognized that a court imposes a procedurally

unreasonable sentence if it commits a “significant procedural

error”     in    the    course       of    sentencing,      including       “failing      to

calculate . . . the Guidelines range.”                        Gall v. United States,

552 U.S. 38, 51 (2007).                    We have applied that principle to

supervised        release      violations,         ruling     that    a     court    “must

consider    . . .       the    policy       statement    range”      when    imposing      a

revocation sentence.             See United States v. Moulden, 487 F.3d

652, 656 (4th Cir. 2007); see also Gall, 552 U.S. at 49 (“[A]

district        court   should       begin     all    sentencing      proceedings         by

correctly           calculating              the        applicable            Guidelines

range.” (emphasis added)).

                                              11
       Notably, the record gives no indication that the district

court considered Hardison’s policy statement range of thirty-

seven to forty-six months.                  The court failed to reference that

range at the revocation hearing or in its written revocation

order, and neither Hardison’s probation officer nor his counsel

alerted the court to the policy statement range.                                  Cf. United

States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995) (determining

that revocation sentence was not procedurally unreasonable when,

although not mentioning policy statement range, court referenced

range specified in probation officer’s worksheet and counsel’s

argument, thus showing that range was in court’s contemplation).

In this situation, we cannot say that the range was within the

court’s contemplation at sentencing.                       Accordingly, we conclude

that the court committed a procedural error, thereby rendering

its    sentence      procedurally          unreasonable.         The    first      prong    of

plain error review is thus satisfied.

       Next, we must decide whether the error was plain, which in

this    case      requires          an     assessment      of     whether         Hardison’s

procedurally          unreasonable            sentence          was      also        plainly

unreasonable.         See United States v. Crudup, 461 F.3d 433, 439

(4th    Cir.    2006).         In   conducting      that    inquiry,         we   apply    the

definition      of   “plain”        from    our    plain   error      principles.          Id.

Thus,    a     sentence    can       only    be    plainly      unreasonable         if    the

sentencing      error     is    “clear”      or    “obvious,”         id.,   in    that    the

                                              12
sentence “run[s] afoul of clearly settled law,” United States v.

Thompson, 595 F.3d 544, 548 (4th Cir. 2010).                       We have authority

for the proposition that a revocation sentence imposed absent

consideration        of   the     applicable       policy       statement      range     is

procedurally unreasonable.             See, e.g., Moulden, 478 F.3d at 656;

Crudup,        461    F.3d      at    440     (deeming        revocation         sentence

procedurally         reasonable       because      court     expressly         considered

advisory range).          By failing to consider the policy statement

range prior to sentencing, the district court imposed a plainly

unreasonable sentence.               Thus, Hardison has also satisfied the

second prong of plain error review.

      The determination that the district court imposed a plainly

unreasonable sentence does not end our inquiry.                          We next assess

whether the court’s plain error affected Hardison’s substantial

rights.    See United States v. Olano, 507 U.S. 725, 732 (1993).

To satisfy Olano’s third prong in the context of a revocation

sentencing, Hardison “must show that he would have received a

lower sentence had the error not occurred.”                       See United States

v. Knight, 606 F.3d 171, 178 (4th Cir. 2010); see also United

States     v.        McLaurin,        764    F.3d        372,      388      (4th       Cir.

2014) (explaining         that    there     must   be    nonspeculative         basis    in

record    to    conclude     lower     sentence     would       have   been     imposed).

This is the prong where Hardison fails, in that he has not shown

a   nonspeculative        basis      upon   which       to   vacate      his    sentence.

                                            13
Indeed,    the    court      was    unequivocal       in    its    determination          that

Hardison had “no sympathy or position to argue” as a result of

his earlier breach of the court’s trust, and that Hardison had

made an “absolute mockery” of the supervised release system.

See J.A. 23; cf. McLaurin, 764 F.3d at 388 (vacating sentence

where    district      court    expressed         serious    concern        with   advisory

Guidelines       range).           The    court     specifically        concluded         that

Hardison should receive the “maximum punishment,” see J.A. 23,

referring to the statutory maximum sentence of sixty months.                               It

would    thus    be    “pure   speculation”         for     us    to   decide      that   the

sentencing court would have imposed a lower sentence if it had

considered Hardison’s policy statement range.                          See Knight, 606

F.3d at 179.           In these circumstances, Hardison’s substantial

rights     have        not     been        affected,         and       his      procedural

unreasonableness contention does not satisfy plain error review.

                                             B.

     Hardison         also   contends      that     his    revocation        sentence      was

substantively unreasonable because the district court failed to

adequately explain why his sentence was substantially in excess

of the policy statement range.                    In the context of a revocation

sentencing,      the    district         court’s    explanation        of    its   sentence

“need not be as specific” as that required for a sentence which

departs   or     varies      from    a    traditional       Guidelines       range.        See

Moulden, 478 F.3d at 657 (internal quotation marks omitted).                               We

                                             14
will   therefore        uphold    a    revocation      sentence      as     substantively

reasonable if the court has “sufficiently stated a proper basis

for its conclusion.”             See Crudup, 461 F.3d at 440.                    In Crudup,

we affirmed the imposition of the statutory maximum sentence as

substantively          reasonable,       notwithstanding         the      fact     that     it

exceeded the applicable policy statement range.                        See id.           In so

ruling, we observed that the court based its sentence on several

relevant    factors,       including      that    the    defendant        had     committed

numerous violations of his supervised release, despite having

previously        received       leniency      from      the     court.            See     id.

Similarly,        in      Hardison’s       revocation          hearing,       the        court

emphasized        that,    after      receiving       leniency       from    the     court,

Hardison abused the court’s trust in an egregious fashion.                                 The

court also observed and emphasized that Hardison had committed

multiple    violations       of    his    conditions      of     supervised        release,

including selling cocaine and unlawfully possessing a firearm.

       By   its    revocation         order,   the    district       court       relied     on

several     pertinent      § 3553(a)      factors       for    imposing      the    maximum

sentence.     Emphasizing the § 3553(a)(2)(B) factor of deterrence,

the court observed that a lengthy sentence was required because

“neither     [Hardison’s]         prior     conviction         and   sentence       of     204

months’ imprisonment nor this Court’s leniency in permitting him

to continue on supervision . . . were sufficient to cause him to

refrain from engaging in the sale of illegal narcotics.”                             United

                                            15
States v. Hardison, No. 5:95-cr-00083, at 2 (E.D.N.C. May 30,

2014),    ECF    No.    402.      The   court    also    explained,      invoking

§ 3553(a)(2)(C),        that   the    maximum    sentence     was    required   to

protect   the    public    from      further    crimes   by   Hardison.         Id.

Finally, the court balanced the statutory considerations against

Hardison’s arguments in mitigation, stating:

      The Court has further considered the arguments by
      defendant’s counsel presented in mitigation, and finds
      they do not outweigh the need for adequate deterrence
      and protection of the public.       Indeed, counsel’s
      argument that defendant has been on supervision for
      four years with only one earlier violation is strongly
      undercut by the testimony of the investigating officer
      that this defendant was a known drug dealer in a high
      crime area.

Id.   In sum, the court had multiple reasons for its imposition

of the statutory maximum sentence, and explicitly considered and

rejected all arguments in mitigation.                The court’s explanation

was more than sufficient and therefore substantively reasonable.

Accordingly, Hardison’s substantive unreasonableness contention

fails on the first prong of plain error review, in that the

revocation sentence was not substantively unreasonable and thus

not in error.



                                        IV.

      Pursuant     to    the   foregoing,       we   affirm    the    revocation

sentence of the district court.

                                                                         AFFIRMED

                                        16
