                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4690


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JULIE RENEE STEWART,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:08-cr-00219-TDS-2)


Submitted:   May 28, 2010                 Decided:   June 18, 2010


Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John D. Bryson, WYATT EARLY HARRIS & WHEELER, LLP, High Point,
North Carolina, for Appellant.      Anna Mills Wagoner, United
States Attorney, Randall S. Galyon, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Julie    Renee         Stewart     pled       guilty        to    conspiracy          to

possess      pseudoephedrine            for      the        purpose       of     manufacturing

methamphetamine,          21    U.S.C.A.       §§   841(c)(2),            846    (West       1999    &

Supp.      2010),    and    was       sentenced        to    a    term     of    fifty       months

imprisonment. 1        Stewart contends              on appeal that                  the district

court incorrectly calculated her criminal history by adding her

probation revocation sentence to her original suspended sentence

of imprisonment, USSG §§ 4A1.1(b), 4A1.2(a)(1), (k).                                  We affirm.

              In    the     presentence          report,          Stewart        received       two

criminal history points under USSG § 4A1.1(b) for the sentences

she received for two misdemeanors on March 15, 2001.                                      For the

first      misdemeanor           conviction,         Stewart          received          20     days

imprisonment,        and       for    the   second      conviction             she    received       a

suspended 45-day sentence and two years of supervised probation.

Stewart’s probation was revoked in 2003 and the 45-day sentence

was    activated.          The       probation      officer        counted       the     combined

sentence of 65 days imprisonment as a single sentence.                                    Stewart

objected that the 20-day sentence and the 45-day sentence should

be    counted      separately        and    that    each         should    be    assigned       one


       1
       Stewart’s advisory guideline range was 84-105 months. The
district court departed downward for substantial assistance, on
the government’s motion, pursuant to U.S. Sentencing Guidelines
Manual § 5K1.1, p.s. (2008).



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criminal    history       point    under       § 4A1.1(c).          Because    only    four

criminal history points may be awarded under § 4A1.1(c), and

Stewart had more than four other sentences which each rated one

point under subsection (c), the change would have had the effect

of reducing her actual criminal history score by two points and

lowering her criminal history category from IV to III.

            The probation officer responded that § 4A1.2(a)(2)(B)

currently provides that prior sentences imposed on the same day,

or for offenses charged in the same document, are counted as a

single    sentence    if     there       was       no   intervening        arrest.      The

probation officer also relied on § 4A1.2(k)(1), which directs:

“In the case of a prior revocation of probation . . . add the

original    term     of    imprisonment            to   any   term    of    imprisonment

imposed upon revocation [and] . . . [use] the resulting total

. . . to compute the criminal history points for § 4A1.1(a),

(b), or (c), as applicable.”

            At the sentencing hearing, Stewart argued that the two

misdemeanors       were     separately         charged        and    that     her    20-day

sentence and 45-day sentence were imposed on different dates.

In support of the latter argument, Stewart relied on language in

United States v. Romary, 246 F.3d 339 (4th Cir. 2001), a case in

which the issue was whether a defendant qualified for sentencing

as   a   career   offender        when   one       of   his   predicate      sentences--a

suspended 10-year sentence--came within the 15-year applicable

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time       period    by   virtue   of   the       fact    that   his   probation   was

subsequently revoked and the sentence activated.                       In considering

the issue, this court in Romary at one point referred to the

suspended sentence as “the original sentence” and the probation

revocation sentence as “the second sentence.”

               The    district     court       rejected      Stewart’s     objection,

finding that the prior sentences were imposed on the same day

and that the revocation sentence was properly treated as part of

the original sentence under USSG § 4A1.2(k)(1) and Application

Note 11.       The court observed that Romary was consistent with the

current guidelines when it stated that post-conviction penalties

were attributable to the original conviction on constitutional

grounds.

               On appeal, Stewart renews her argument that the two

prior sentences should have been counted separately because the

offenses were not charged in the same charging instrument, and

her 20-day sentence was not imposed on the same day as her 45-

day    revocation         sentence. 2         A     sentence      is   reviewed    for

reasonableness under an abuse of discretion standard.                          Gall v.

United States, 552 U.S. 38, 51 (2007).




       2
        Stewart does not argue                     that    an    intervening    arrest
separated the two offenses.



                                           4
              As    the    district      court       found,      § 4A1.2(k)(1)      requires

the court to treat a revocation sentence as part of the original

sentence.          Stewart       first   argues       that     § 4A1.2(k)(1)        does   not

require the 45-day revocation sentence she received in 01-CR-

50845 be added to the 20-day active sentence she had previously

received      in        01-CR-50844       because         there      was    no      probation

revocation         in     01-CR-50844.                However,       the     language       of

§ 4A1.2(k)(1) and its commentary is unambiguous, and does not

require, when two prior sentences were imposed on the same date,

that both entail a later probation violation.                              Second, Stewart

again argues that Romary supports her position.                              It does not.

The   focus    in       Romary    was    whether       the    date   of    the    revocation

sentence      brought      the    original      sentence         within    the    applicable

time period to make it countable for career offender purposes,

not whether the revocation sentence was part of the original

sentence under § 4A1.2(k)(1).                       We conclude that the district

court   correctly          applied       the        relevant      guidelines,       that   no

procedural error was committed by the district court, and that

the sentence was otherwise reasonable.

              We    therefore        affirm         the   sentence        imposed    by    the

district    court.         We     dispense      with      oral    argument       because   the

facts   and    legal       contentions         are    adequately      presented       in   the




                                                5
materials   before   the   court   and   argument   would   not   aid   the

decisional process.

                                                                  AFFIRMED




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