UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                   No. 96-4458

STERLING HARDY,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
James R. Spencer, District Judge.
(CR-92-68)

Submitted: December 16, 1997

Decided: January 26, 1998

Before ERVIN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

Jeffrey L. Everhart, RICE & EVERHART, Richmond, Virginia, for
Appellant. Nicholas S. Altimari, UNITED STATES ATTORNEY'S
OFFICE, Richmond, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Sterling Hardy pled guilty to conspiracy to distribute cocaine, vio-
lent crimes in aid of racketeering, aiding and abetting, and use of a
firearm in relation to a crime of violence or a drug trafficking crime.
Hardy was sentenced to a term of 360 months imprisonment followed
by five years supervised release; however, after granting the Govern-
ment's motion for a sentence reduction based on substantial assistance,1
the district court reduced Hardy's sentence to thirty-six months on all
counts to run concurrently. Hardy completed the imprisonment term
and began serving his supervised release.

While on supervised release, Hardy was charged with assault and
petty larceny. The facts surrounding these offenses involved a domes-
tic dispute with Hardy's former fiance, Iris Weathers. Although the
criminal charges were not prosecuted because Weathers did not
appear to testify, Hardy's probation officer reported the offenses to
the district court and revocation proceedings were commenced.

During the revocation hearing, the district court heard testimony
from Weathers and her sister as they recounted several instances of
Hardy's assaulting Weathers and one occasion of his taking her purse.
The district court found the testimony of Weathers and her sister more
credible than that of Hardy, who denied striking Weathers or stealing
her purse.2 Consequently, the district court found that Hardy's actions
constituted the commission of "another federal, state, or local crime,"
in violation of one of the stated conditions of supervised release. The
district court revoked Hardy's supervised release and sentenced him
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1 See U.S. Sentencing Guidelines Manual § 5K1.1 (1995).
2 Hardy's attempt to challenge the district court's credibility determina-
tion is not reviewable on appeal. See United States v. Saunders, 886 F.2d
56, 60 (4th Cir. 1989).

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to sixty-three months imprisonment. Hardy now appeals the revoca-
tion of his supervised release and the sentence imposed.

Hardy's counsel filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), presenting two issues for appellate review: whether
the district court erred in finding that Hardy's actions constituted a
violation of a stated condition of his supervised release, and whether
the sixty-three month sentence imposed by the court was appropriate.

The district court must revoke the supervised release of a defendant
who has violated one of the conditions of supervised release.3 The
district court properly found that Hardy's commission of assault and
petty larceny violated a condition of supervised release and properly
revoked the release. Accordingly, we affirm the district court's revo-
cation of Hardy's supervised release.

Hardy did not object to the sentence imposed by the district court.
Therefore, we review the sentence for plain error. 4 Hardy's convic-
tions for conspiracy to distribute cocaine5 and aiding and abetting vio-
lent crimes in aid of racketeering,6 carried a maximum term of life
imprisonment. Accordingly, each of these offenses is a Class A felony.7
And since the offenses that led to the imposition of Hardy's super-
vised release include Class A felonies, the statutory maximum term
of imprisonment upon revocation of his supervised release is sixty
months.8 The district court's imposition of a sixty-three month sen-
tence exceeded the statutory maximum by three months.9 Imposing a
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3 See 18 U.S.C. § 3583(e) (1994).
4 See United States v. Olano, 507 U.S. 725 (1993); United States v.
Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995).
5 See 21 U.S.C. §§ 841(b)(1), 846 (1994).
6 See 18 U.S.C. §§ 2, 1959(a)(1) (1994).
7 See 18 U.S.C. § 3559(a)(1) (1994).
8 See 18 U.S.C. § 3583(e)(3).
9 Hardy's assault and petty larceny offenses, Class 1 misdemeanors
under Virginia law, are Grade C violations of his supervised release. See
Va. Code Ann. § 18.2-11, -57, -96 (Michie 1996 & Supp. 1997); USSG
§ 7B1.1(a)(3). Under the table of sentencing ranges included in the Sen-
tencing Guidelines' policy statements applicable to violations of super-

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sentence in excess of the statutory maximum is plain error.10 Accord-
ingly, we vacate the sixty-three month sentence and remand for resen-
tencing.

This court requires that counsel inform his client, in writing, of his
right to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Coun-
sel's motion must state that a copy thereof was served on the client.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the record and briefs, and oral argu-
ment would not aid the decisional process.

AFFIRMED IN PART, VACATED
IN PART, AND REMANDED
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vised release, Hardy's sentencing range was eight to fourteen months,
because he committed a Grade C violation and his criminal history cate-
gory was VI. See USSG § 7B1.4(a). However, these policy statements
are not binding on the district court. See United States v. Davis, 53 F.3d
638, 640-42 (4th Cir. 1995). Accordingly, a sentence outside the guide-
lines range set forth in those policy statements cannot constitute plain
error.
10 See United States v. Johnson , 4 F.3d 904, 918 (10th Cir. 1993); see
generally United States v. Cobbs, 967 F.2d 1555, 1557-58 (11th Cir.
1992).

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