                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-5217


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CALVIN JERMANE AUDU,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:99-cr-00106-1)


Submitted:   April 28, 2010                   Decided:   May 20, 2010


Before MOTZ, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Charleston, West Virginia, for Appellant.
Charles T. Miller, United States Attorney, R. Gregory McVey,
Assistant United States Attorney, Huntington, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Calvin     Jermane       Audu       appeals    the    district        court’s

judgment revoking his supervised release and sentencing him to

six   months’      imprisonment.         On       appeal,    Audu   alleges    that    his

sentence      is   plainly     unreasonable          because    the    district      court

failed   to     calculate      the   advisory        policy    statement      range    and

failed to solicit argument from the parties about the sentence.

For the following reasons, we affirm.

              This     court    will     affirm       a     sentence      imposed     after

revocation of supervised release if it is within the prescribed

statutory range and not plainly unreasonable.                         United States v.

Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006).                          In making this

determination,         we   first      consider       whether       the    sentence     is

unreasonable.        Id. at 438.         “This initial inquiry takes a more

‘deferential appellate posture concerning issues of fact and the

exercise      of     discretion’         than        reasonableness         review     for

[G]uidelines sentences.”               United States v. Moulden, 478 F.3d

652, 656 (4th Cir. 2007) (quoting Crudup, 461 F.3d at 439).

              To determine whether the sentence is unreasonable, we

generally follow the procedural and substantive considerations

employed in reviewing original sentences.                       Crudup, 461 F.3d at

438-39; see United States v. Finley, 531 F.3d 288, 294 (4th Cir.

2008)    (“In      applying    the     ‘plainly      unreasonable’         standard,    we

first determine, using the instructions given in Gall [v. United

                                              2
States,     552       U.S.   38,    51     (2007)],       whether       a     sentence    is

‘unreasonable.’”).                Here,      the       district      court       committed

procedural error when, at least on the face of the record before

us, it does not appear that either the court or the probation

officer    calculated        the    advisory        policy      statement       sentencing

range.    See Gall, 552 U.S. at 51.

               Upon    finding     this    procedural          error,   our     next     step

under Crudup is to determine whether the sentence is “plainly

unreasonable,”          under      the     definition          of   “plain”      used     in

plain-error analysis.            Crudup, 461 F.3d at 439.               “For a sentence

to be plainly unreasonable . . . it must run afoul of clearly

settled law.”          United States v. Thompson, 595 F.3d 544, 548 (4th

Cir.     2010).         Because     the      district      court’s          obligation    to

calculate      the     advisory     policy       statement      sentencing      range     has

been settled since 2007, see Moulden, 478 F.3d at 656-57, we

conclude that its failure to do so is plainly unreasonable.

               However, because Audu has not preserved this issue, it

is   subject      to    plain     error    review.         Under     the      plain    error

standard, the defendant must show that an error was made, is

plain, and affects the defendant’s substantial rights.                                United

States    v.    Massenburg,        564    F.3d    337,    342-43    (4th      Cir.    2009).

Because     the       sentence      imposed       by     the    district       court     was

ultimately within the advisory policy statement range and was



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within the statutory maximum, we find that the error does not

affect Audu’s substantial rights.

              Finally,      we    conclude     that,      contrary     to     Audu’s

assertion,      he   was    given    ample     opportunity    to     argue    for    a

specific sentence, but did not do so.               Therefore, we affirm the

district      court’s      revocation    of    supervised     release       and     the

six-month sentence.          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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