                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-4089



UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.


CARLTON PARLEY MUSICK, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley.    Thomas E. Johnston,
District Judge. (5:07-cr-00077-1)


Submitted:   July 22, 2008                  Decided:   August 15, 2008


Before WILKINSON, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Troy N. Giatras, THE GIATRAS LAW FIRM, PLLC, Charleston, West
Virginia, for Appellant.      Charles T. Miller, United States
Attorney, Miller A. Bushong, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Carlton Parley Musick, Jr., pled guilty to distribution

of more than five grams of cocaine base (crack), and was sentenced

to a term of sixty-three months imprisonment.             Musick appeals his

sentence, contending that the district court incorrectly calculated

his    criminal   history   under    U.S.    Sentencing   Guidelines    Manual

§§ 4A1.1, 4A1.2 (2007), but conceding that the error, if any, did

not affect his criminal history category.           We affirm.

            Musick received three criminal history points for a

suspended sentence of one to five years imprisonment, with one year

of probation, imposed on April 20, 2001, for conspiracy to commit

a felony, because his probation was revoked on February 21, 2002,

after he admitted committing additional property crimes in the

latter part of 2001.        Upon revocation, the original sentence was

imposed.    Musick received two criminal history points for a one-

year   suspended   sentence    for   petit    larceny,    with   one   year   of

probation, which was also revoked on February 21, 2002, based on

the same admission of additional criminal conduct.               In this case

also, the original sentence was imposed. At the sentencing hearing

in December 2007, defense counsel acknowledged that, even if

Musick’s argument had merit, correction of his criminal history

score would leave him in the same category, and the objection was

“an academic issue.”




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           The court found, first, that the prior sentences in

question were properly counted separately because there was an

intervening arrest.     The court also considered the effect of

§ 4A1.2(k) and Application Note 11, which deal with revocation

sentences, and neither of which were affected by 2007 amendments to

§ 4A1.2.

           The court noted a split in the circuits over how to

interpret the second paragraph of Application Note 11, which

states:    “Where a revocation applies to multiple sentences, and

such sentences are counted separately under § 4A1.2(a)(2), add the

term of imprisonment imposed upon revocation to the sentence that

will result in the greatest increase in criminal history points.”

Compare United States v. Streat, 22 F.3d 109, 111-12 (6th Cir.

1994) (treating revocation as single action applied to all prior

suspended sentences), and United States v. Flores, 93 F.3d 587,

591-92 (9th Cir. 1996) (same), with United States v. Norris, 319

F.3d 1278, 1285-88 (10th Cir. 2003) (holding that where state court

imposed multiple sentences on revocation of probation, to be served

either consecutively or concurrently, Note 11 is inapplicable and

criminal history is calculated solely under § 4A1.2(k)). The court

followed Norris and determined that Musick’s criminal history was

properly calculated in the presentence report.

           Musick   contends   that   the   district   court   erred   in

following Norris and rejecting the Sixth Circuit’s interpretation


                                 - 3 -
of Application Note 11 in Streat.       When the resolution of an issue

involves primarily the legal interpretation of a guideline, it is

reviewed de novo.    United States v. Kinter, 235 F.3d 192, 195 (4th

Cir. 2000).      Even assuming, without deciding, that Musick is

correct and the district court erred in refusing to reduce his

criminal history score by one point, the error, if any, had no

practical effect on his sentence.       Therefore, we conclude that we

need not decide in this case the issue which has given rise to the

circuit split.

          Accordingly,    we   affirm    the   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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