              Vacated by Supreme Court, October 4, 2010



                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4482


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DERRICK LAMONT SUMMERS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Martin K. Reidinger,
District Judge. (3:03-cr-00040-MR-2)


Submitted:    January 14, 2010              Decided:   January 20, 2010


Before MOTZ, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Beth Blackwood,
Research and Writing Attorney, Charlotte, North Carolina, for
Appellant. Edward R. Ryan, Acting United States Attorney, Mark
A. Jones, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Derrick      Summers      appeals         the      district       court’s

revocation    of   his     supervised       release     term    imposed       by   the

district court upon his conviction, on a guilty plea, to use and

carry of a firearm in furtherance of a car-jacking, in violation

of 18 U.S.C. § 924(c) (2006). 1         The revocation occurred following

Summers’ arrest, less than six weeks after the commencement of

his term of supervised release, for possession of marijuana with

intent to distribute, possession of a firearm by a convicted

felon, possession of a stolen firearm, and unlawfully carrying a

concealed weapon.        Following a hearing, the district court found

five violations of the terms of Summers’ supervised release, and

found that the first violation, Summers’ possession with intent

to   distribute    marijuana       (“Violation     One”),       was    a   Grade    A

violation     pursuant     to   U.S.        Sentencing      Guidelines         Manual

(“USSG”), § 7B1.1(a)(1), 2 contrary to Summers’ claim that it was

a Grade B violation.        The district court then imposed a 30-month




     1
       The district court sentenced Summers to                        seven    years’
imprisonment and three years’ supervised release.
     2
       In the supervised release revocation context, a Grade A
violation results from “conduct constituting a federal, state,
or local offense punishable by a term of imprisonment exceeding
one year that . . . is a controlled substance offense.”    USSG
§ 7B1.1(a)(1).



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term of imprisonment, followed by a 30-month term of supervised

release.

             On appeal, Summers again claims that Violation One was

a   Grade   B   violation     because,       under   North   Carolina’s        unique

sentencing scheme, which determines statutory maximum punishment

based on a defendant’s criminal history, a person with Summers’

criminal history could not have been sentenced to more than 10

months’ imprisonment for this offense.               We find this claim to be

foreclosed by circuit precedent.               The district court correctly

determined that Summers’ possession with intent to distribute

marijuana is a Grade A violation because the maximum aggravated

sentence    that     could    be   imposed     for   this    crime    under    North

Carolina’s      structured     sentencing      system   is    15     months.     See

United States v. Harp, 406 F.3d 242, 245-46 (4th Cir. 2005)

(declining      to   apply   an    “individualized      analysis”      and   holding

that the court properly should consider “the maximum aggravated

sentence that could be imposed for that crime upon a defendant

with the worst possible criminal history”) (citing United States

v. Jones, 195 F.3d 205 (4th Cir. 1999)).                 Nor do we find merit

to Summers’ contention that the United States Supreme Court’s

decision in United States v. Rodriquez, 553 U.S. 377 (2008),

implicitly overrules the reasoning in Harp such that it is no

longer controlling.          See, e.g., United States v. Hill, 539 F.3d

1213, 1221 (10th Cir. 2008) (holding that “Section 922(g)(1),

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like the statute [at issue] in Rodriquez, demands that courts

focus on the maximum statutory penalty for the offense, not the

individual defendant”); cf. United States v. Pruitt, 545 F.3d

416, 422 (6th Cir. 2008).

               Finally, we decline Summers’ invitation to revisit our

holding in United States v. Crudup, 461 F.3d 433, 437 (4th Cir.

2006),    as    to   the    standard      of       review   for   supervised    release

revocation sentences.             See United States v. Chong, 285 F.3d 343,

346-47 (4th Cir. 2002).              Accordingly, we affirm the judgment of

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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