                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4897


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

TOMMY ESSICK,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   N. Carlton Tilley,
Jr., Senior District Judge. (2:95-cr-00112-NCT-6)


Submitted:   May 13, 2013                     Decided:   May 24, 2013


Before GREGORY, DUNCAN, and WYNN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Eugene E. Lester, III, SHARPLESS & STAVOLA, PA, Greensboro,
North Carolina, for Appellant.      Ripley Rand, 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Unpublished opinions are not binding precedent in this circuit.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:

               Tommy      Essick     appeals        the   district     court’s     order

revoking    his         supervised    release       and   imposing     a    sentence     of

thirty months’ imprisonment.                Essick argues that his sentence is

procedurally unreasonable because the district court erroneously

characterized his conduct as a Grade A violation and because the

court did not consider the 18 U.S.C. § 3553(a) (2006) factors

applicable         to    supervised       release    revocation       sentences.         We

affirm.

               A   district       court    has    broad   discretion       to   impose    a

sentence upon revoking a defendant’s supervised release.                          United

States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).                           We will

affirm     a       revocation        sentence        if    it    is     not     “plainly

unreasonable.”           United States v. Crudup, 461 F.3d 433, 439 (4th

Cir. 2006).             In making this determination, we first consider

whether the sentence imposed is procedurally or substantively

unreasonable.            Id. at 438-49.           Only if a sentence is found

procedurally or substantively unreasonable will we “then decide

whether the sentence is plainly unreasonable.”                         Id. at 439.       A

revocation sentence is procedurally reasonable if the district

court has considered the advisory policy statement range and the

§ 3553(a) factors applicable to supervised release revocation.

Id.   at   438-40.            A      revocation       sentence    is       substantively



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reasonable if the district court stated a proper basis for its

sentencing decision.        Id. at 440.

            Essick first claims that the sentence imposed by the

district court is procedurally unreasonable because the court

erroneously classified his conduct as a Grade A violation of the

terms of his supervised release.                 Essick argues that his conduct

is punishable by less than one year in prison under state law

and thus should be classified as a Grade B violation.                              However,

a Grade A violation is “conduct constituting . . . a federal,

state, or local offense punishable by a term of imprisonment

exceeding   one     year    that     .   .       .    is    a   controlled    substance

offense.”          U.S.     Sentencing               Guidelines      Manual        (“USSG”)

§ 7B1.1(a)(1), p.s. (2012).              The commentary to the Guidelines

emphasizes that “[t]he 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 the violation is to be based on the defendant’s actual

conduct.”     USSG        § 7B1.1,    p.s.,          cmt.    n.1;    see    also    United

States v.    Jolibois,       294     F.3d        1110,      1114     (9th   Cir.     2002)

(concluding that violation of terms of supervised release is

determined based on defendant’s conduct and may be found whether

defendant was ever convicted of any particular offense).                             Here,

the   Government    presented        evidence          at   the     revocation     hearing



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establishing that Essick’s conduct involved possession with the

intent to distribute five ounces of marijuana, which constitutes

a     federal      offense      punishable             by     imprisonment          for     a     term

exceeding one year.             See 21 U.S.C.A. § 841(b)(1)(D) (West Supp.

2012) (authorizing up to five years’ imprisonment for possession

with     intent        to     distribute           less       than     fifty        kilograms      of

marijuana).        Thus, because Essick’s actual conduct constituted a

federal offense punishable by imprisonment for a term exceeding

one     year,      we       conclude        that       the     district           court    properly

classified Essick’s conduct as a Grade A violation.

              Essick also argues that the district court did not

consider the § 3553(a) factors applicable to supervised release

revocation sentences.              We disagree.               “Regardless of whether the

district      court      imposes       an    above,          below,    or    within-Guidelines

sentence,         it    must    place        on        the     record       an     individualized

assessment based on the particular facts of the case before it.”

United      States      v.   Carter,        564     F.3d      325,    330        (4th    Cir.   2009)

(internal quotation marks omitted).                             However, “[a] court need

not    be    as    detailed      or     specific             when    imposing       a     revocation

sentence as it must be when imposing a post-conviction sentence,

but    it    still      must    provide        a       statement       of    reasons        for    the

sentence        imposed.”          Thompson,            595     F.3d        at     547    (internal

quotation marks omitted).



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           Here,   the    district      court   imposed    a    below-Guidelines

sentence of thirty months’ imprisonment.                   The district court

acknowledged     Essick’s    age   by    noting     that   Essick     first   came

before the court in 1990 and that “we’re both older than we were

when we first met each other.”                See 18 U.S.C. § 3553(a)(1).

Further, the district court stated that it would “give [Essick]

credit” for completing an alcohol treatment program while on

supervised release.        See 18 U.S.C. § 3553(a)(1).              Additionally,

in rejecting Essick’s request for leniency, the court stated

“there was too much involved in that earlier time, and then

this, too.”      See generally 18 U.S.C. § 3553(a)(2)(C).                 Further,

the   district    court    recommended       that   Essick     be   permitted   to

participate in drug treatment programs while in prison.                    See 18

U.S.C. § 3553(a)(2)(D).        We conclude that the court’s comments

demonstrated that it considered the relevant § 3553(a) factors.

           Finally,       Essick   challenges        the       district   court’s

refusal to give him credit for eighteen months’ imprisonment

that he served on a conviction for possession of a firearm by a

felon that was later reversed.                However, Essick cites to no

authority establishing that the district court was required to

take that into consideration.                Accordingly, we find Essick’s

argument unpersuasive.




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           We therefore affirm the district court’s judgment.             We

dispense   with     oral   argument   because     the    facts   and   legal

contentions   are   adequately   presented   in    the   materials     before

this court and argument would not aid the decisional process.



                                                                   AFFIRMED




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