                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4839


UNITED STATES OF AMERICA,

                  Plaintiff – Appellee,

             v.

EMMANUEL WASHINGTON,

                  Defendant – Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
District Judge. (3:00-cr-00063-nkm-14)


Submitted:    June 10, 2009                   Decided:   July 2, 2009


Before WILKINSON, NIEMEYER, and MICHAEL, Circuit Judges.


Affirmed by unpublished per curiam opinion.


David L. Heilberg, DYGERT, WRIGHT, HOBBS & HEILBERG, PLC,
Charlottesville, Virginia, for Appellant.      Julia C. Dudley,
United States Attorney, Ronald M. Huber, Assistant United States
Attorney, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Emmanuel          Washington       appeals      the     district         court’s

judgment imposing a 27-month prison sentence upon the revocation

of his supervised release.               Although Washington does not contest

the revocation on appeal, he maintains that the district court’s

sentence is not reasonable as it was premised upon an improper

calculation of the Chapter Seven policy statement range, see

U.S. Sentencing Guidelines Manual (“USSG”) (2007), because the

state crimes for which he was convicted do not fit the criteria

for a Grade A violation.                 He also contends that the district

court impermissibly considered testimonial hearsay, in violation

of    the   Sixth    Amendment’s        Confrontation        Clause,       and       erred   in

considering conduct for which he was acquitted in state court.

Finally, he argues that the district court failed to consider

the    18   U.S.C.       §    3553(a)    (2006)     factors        and     to    provide      a

sufficient explanation for the 27-month sentence.                          We affirm.

             We     review      a     sentence     imposed     after       revocation        of

supervised        release        to     determine     whether         it        is    plainly

unreasonable.           United States v. Crudup, 461 F.3d 433, 437-40

(4th Cir. 2006).             The first step in this analysis is whether the

sentence was unreasonable.                    Id. at 438.          In conducting this

review,     this        court       follows     generally      the       procedural          and

substantive         considerations         employed       in       reviewing         original

sentences.        Id.    The district court commits procedural error by

                                               2
improperly calculating the Guidelines.                    Gall v. United States,

552 U.S. 38, 128 S. Ct. 586, 597 (2007).                     In assessing whether

the district court properly applied the Guidelines, we review

the district court’s factual findings for clear error and its

legal conclusions de novo.              United States v. Osborne, 514 F.3d

377, 387 (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008).                         For

mixed    questions    of    law   and    fact,      we    apply   a    due   deference

standard in reviewing the district court.                  Id.

            Although the district court must consider the policy

statements in Chapter Seven of the Sentencing Guidelines and the

statutory factors in § 3553(a) and 18 U.S.C. § 3583, “the court

ultimately has broad discretion to revoke its previous sentence

and impose a term of imprisonment up to the statutory maximum.”

Crudup, 461 F.3d at 439 (quoting United States v. Lewis, 424

F.3d     239,   244   (2d    Cir.       2005))      (internal     quotation     marks

omitted).       Finally,    on    review,      we   will    assume     a   deferential

appellate posture concerning issues of fact and the exercise of

discretion.     Id.

            Because    Washington        did     not     object   to   the    district

court’s finding that he committed a Grade A violation of the

terms of his supervised release, we review this claim for plain

error.    United States v. Olano, 507 U.S. 725, 732 (1993).                      Under

the plain error standard, Washington must show: (1) there was

error; (2) the error was plain; and (3) the error affected his

                                          3
substantial         rights.          Id.      Even    when      these        conditions         are

satisfied, this court may exercise its discretion to notice the

error   only       if       the    error   “seriously”         affects       the       “fairness,

integrity, or public reputation of judicial proceedings.”                                       Id.

at 736 (internal quotation marks omitted).

              Under         USSG     § 7B1.1(a)(1),        p.s.,        a    state       offense

punishable by a term of imprisonment exceeding one year that is

a   “crime    of     violence”        constitutes      a   Grade    A       violation       of   a

defendant’s supervised release.                      The term “crime of violence”

includes      any       offense      punishable      by    a    term        of    imprisonment

exceeding one year that “has as an element the use, attempted

use, or threatened use of physical force against the person of

another” or “involves use of explosives [] or otherwise involves

conduct      that    presents         a    serious    potential        risk       of    physical

injury to another.”                USSG § 4B1.2(a)(1) & (2); see USSG § 7B1.1,

p.s., comment. (n.2).

              The commentary to USSG § 7B1.1, p.s. emphasizes that

the “grade of violation does not depend on the conduct that is

the   subject       of       criminal      charges    of   which       the       defendant       is

convicted      in       a    criminal      proceeding.          Rather,          the    grade    of

violation is to be based on the defendant’s actual conduct.”

USSG § 7B1.1, p.s., comment. (n.1).                        In this case, Washington

was   charged       under         Virginia    law    with,      among       other      offenses,

abduction and malicious wounding, both felonies punishable by a

                                               4
year or more in prison.             See Va. Code Ann. §§ 18.2-47(A), 18.2-

51 (West 2007).            These crimes meet the requirements of USSG

§ 7B1.1(a)(1)(A), p.s. in that they are state crimes of violence

punishable by more than one year’s imprisonment.                              See Va. Code

Ann.    § 18.2-10       (West     2007).         Thus,    they     constitute       Grade     A

violations.

               Washington        argues     that    because        he       was   ultimately

convicted of two state misdemeanors, he cannot be deemed to have

committed a Grade A violation of his supervised release.                                   This

is simply incorrect.              A violation of the terms of supervised

release is determined on the basis of a defendant’s conduct and

may    be     found    whether     Washington       was     ever    convicted         of    any

particular offense.              See United States v. Jolibois, 294 F.3d

1110,    1114    (9th     Cir.    2002).         Further,      although       a   conviction

requires       proof     beyond     a     reasonable       doubt,       a     violation     of

supervised release need only be proved by a preponderance of the

evidence, see 18 U.S.C. § 3583(e)(3).

               As to the evidence the district court considered in

finding a Grade A violation, Washington lodges two challenges.

First,       Washington    asserts        that    his    Sixth     Amendment       right    to

confrontation, as elucidated in Crawford v. Washington, 541 U.S.

36,     68     (2004),     was     violated        because       the    district       court

considered       testimonial        hearsay        in    the     Probation         Officer’s

violation       report.      Washington’s          Sixth    Amendment         claim   fails,

                                             5
however,       as    Crawford      does     not     apply      to    supervised       release

revocation          proceedings          because      they          are     not     “criminal

prosecutions” under the Sixth Amendment.                         See United States v.

Kelley, 446 F.3d 688, 691-92 (7th Cir. 2006); United States v.

Rondeau, 430 F.3d 44, 47-48 (1st Cir. 2005); United States v.

Hall, 419 F.3d 980, 985-86 (9th Cir. 2005); United States v.

Kirby,    418       F.3d   621,    627    (6th     Cir.    2005);         United    States   v.

Martin, 382 F.3d 840, 844 n.4 (8th Cir. 2004).

               Relying     on     United    States        v.   Booker,       543    U.S.     220

(2005), Washington also asserts that the district court erred in

considering conduct for which he was acquitted in state court.

He     reasons      that   his     sentence        violates      the       Sixth    Amendment

because the district court, in reaching its conclusion that he

committed a Grade A violation, engaged in impermissible judicial

fact-finding.          This argument is also without merit, however, as

sentencing       courts     may    properly       consider      acquitted          conduct   in

fashioning a sentencing range, as long as the conduct is proven

by a preponderance of the evidence.                   See United States v. Watts,

519 U.S. 148, 155-56 (1997) (holding that “a jury’s verdict of

acquittal does not prevent the sentencing court from considering

conduct underlying the acquitted charge, so long as that conduct

has been proved by a preponderance of the evidence”).                               This rule

remains valid, even after Booker.                   United States v. Mercado, 474

F.3d    654,     657-58     (9th    Cir.     2007)        (collecting        cases),    cert.

                                              6
denied, 128 S. Ct. 1736 (2008); see United States v. Benkahla,

530 F.3d 300, 312 (4th Cir. 2008) (rejecting claim that sentence

violates Sixth Amendment if it depended on judge-found facts to

survive reasonableness review as “too creative for the law as it

stands”), cert. denied, 129 S. Ct. 950 (2009); United States v.

Battle, 499 F.3d 315, 322-23 (4th Cir. 2007) (“When applying the

Guidelines in an advisory manner, the district court can make

factual       findings       using       the     preponderance            of    the    evidence

standard.”), cert. denied, 128 S. Ct. 1121 (2008).

               Washington’s Sixth Amendment claims are without merit

and     the     fact       that     he    was     ultimately            convicted     of     only

misdemeanors has no bearing on the district court’s finding of a

Grade A violation.                As Washington lodges no other challenge to

the     district       court’s       calculation        of        the    applicable        policy

statement range, we discern no plain error.

               Finally,      Washington         asserts      that       the    district     court

erred      because     it    failed      to     consider     the    18    U.S.C.      § 3553(a)

factors       and     to     provide      a     sufficient         explanation        for     its

imposition of the sentence.                     Because the district court failed

to    provide       any    explanation         for    why    it    imposed      the   27-month

sentence or what sentencing factors it considered, the sentence

is    at      least       arguably       both     procedurally           and    substantively

unreasonable.               Nonetheless,         we    conclude          that    Washington’s

sentence is not “plainly” unreasonable because the sentence was

                                                 7
within the recommended Guidelines range and does not exceed the

applicable      statutory   maximum.       Further,   Washington    does    not

assert any “clear” or “obvious” error in the sentence.                      See

Crudup, 461 F.3d at 439.

           Accordingly, we affirm the district court’s judgment.

We also deny Washington’s pending motion to expedite decision.

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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