                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4233


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TYVONE MAURICE SMITH,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:04-cr-00306-RJC-CH-1)


Submitted:   August 25, 2011             Decided:   September 20, 2011


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James S. Weidner, Jr., LAW OFFICE OF JAMES S. WEIDNER, JR.,
Charlotte, North Carolina, for Appellant.    Amy Elizabeth Ray,
Assistant United States Attorney, Asheville, North Carolina, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Tyvone Maurice Smith was convicted of violating the

terms of his supervised release and was sentenced to twenty-one

months in prison.            Smith now appeals.            His attorney has filed a

brief pursuant to Anders v. California, 386 U.S. 738 (1967),

stating      that      there    are    no    meritorious        issues    for       appeal.

Counsel      questions,        however,     whether     the    evidence    supported      a

finding that Smith violated the terms of his release and whether

the sentence is plainly unreasonable.                      Smith has filed a pro se

brief, with supplements, raising additional issues.                            We affirm.

              Smith initially contends that there was insufficient

evidence      upon     which    to    find    that    he    violated     the    terms    of

release.          We   review     a   district       court’s    decision       to    revoke

supervised release for abuse of discretion.                         United States v.

Copley, 978 F.2d 829, 831 (4th Cir 1992).                        To revoke release,

the district court need only find a violation of a condition of

release      by    a   preponderance         of   the      evidence.      18     U.S.C.A.

§ 3583(e)(3) (West Supp. 2011).                   This burden “simply requires

the trier of fact to believe that the existence of a fact is

more probable than its nonexistence.”                   United States v. Manigan,

592   F.3d    621,     631     (4th   Cir.    2010)     (internal      quotation      marks

omitted).         We review for clear error factual findings underlying

the conclusion that a violation of supervised release occurred.

United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003).

                                              2
Credibility        determinations          made        by    the     district        court      at

revocation hearings are rarely reviewable.                                United States v.

Cates, 613 F.3d 856, 858 (6th Cir. 2010).

             At       Smith’s       revocation       hearing,       an    officer    testified

that,     when    a    search       warrant   was      executed          at   a   residence     in

Charlotte, North Carolina, Smith fled through the back door of

the house.        The officer stated that he ordered Smith to stop and

lie on the ground.             As Smith complied, the officer saw him place

a   bag   containing          ten    individually        wrapped         packages    of    crack

cocaine on the ground near a fence post.                             Additionally, Smith

had a package of crack in one of his pockets.                                 The officer also

testified that a confidential informant had recently purchased

crack from a different individual inside the residence.

             Based       on     this    testimony,          which    the       district    court

found credible, the court determined that the United States had

more than met its evidentiary burden, stating that the evidence

that Smith had violated the terms of release was overwhelming.

See United States v. Ruiz-Gea, 340 F.3d 1181, 1189 (10th Cir.

2003).     After reviewing the record and giving due deference to

the district court’s credibility determination in favor of the

officer,     we       conclude      that   the       court   did     not      clearly     err   in

finding that Smith violated the terms of release.                                  Further, in

light of the statutory requirement that release be revoked when

the defendant possesses a controlled substance,                                see 18 U.S.C.A.

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§ 3583(g)(1) (West Supp. 2011), revocation of Smith’s supervised

release was not an abuse of discretion.

           Smith also contends that his twenty-one-month sentence

is unreasonable.          A sentence imposed following revocation of

supervised      release    will    be   affirmed   if   it    is   within     the

applicable statutory maximum and is not plainly unreasonable.

United States v. Crudup, 461 F.3d 433, 439-40 (4th Cir 2006).

Smith’s sentence is below the statutory maximum of twenty-four

months.   See 18 U.S.C.A. § 3583(e)(3).            Further, the sentence is

procedurally reasonable: the district court considered both the

Chapter 7 policy statements and the 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2011) factors that it was permitted to consider.

See   Crudup,    461   F.3d   at   438-40. 1   Finally,      the   sentence    is




      1
       Smith was found to have committed a Grade A supervised
release violation.    His criminal history category was II, and
his recommended Guidelines range was 15-21 months.       See U.S.
Sentencing Guidelines Manual § 7B1.4(a)(1), p.s. (2010). In his
supplemental brief, Smith claims that he should have been found
to have committed a Grade B — not a Grade A — violation of
release. He is incorrect. Under the Guidelines, his possession
of a significant quantity of individually wrapped packages of
crack cocaine qualifies as a Grade A violation.          See USSG
§ 7B1.1(a)(1)(A)(ii).     Additionally, it is immaterial for
purposes of supervised release revocation that Smith was not
convicted of the drug offenses alleged in the petition seeking
revocation of release. See USSG § 7B1.1, comment. (n.1); United
States v. Stephenson, 928 F.2d 728, 732 (6th Cir. 1991).



                                        4
substantively reasonable, for the court adequately explained its

reasons for imposing the sentence.               See id. at 440. 2

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.     We therefore affirm.           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.

Counsel’s motion must state that a copy of the motion was served

on his client.      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




     2
       Our review of the record discloses that the district court
did not, as Smith argues in his supplemental brief, primarily
base the selected sentence on a person having been shot in
connection with Smith’s original firearms offense.    Rather, the
sentence was based upon such factors as the destructive impact
of Smith’s drug trafficking on his community and other aspects
of his criminal past, including his having breached the trust of
the court by violating the terms of release after the court gave
him a lenient sentence for the firearms offense.



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