                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 12-4453


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM RAY JOHNSTON,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, Senior District
Judge. (1:99-cr-00472-JFM-1)


Submitted:   December 14, 2012             Decided:   December 27, 2012


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


James Wyda, Federal Public   Defender, LaKeytria Felder, Assistant
Federal Public Defender,     Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United     States Attorney, Martin J. Clarke,
Assistant United States      Attorney, Baltimore, Maryland, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               In 2001, William Ray Johnston was sentenced to 130

months of imprisonment for being a felon in possession of a

firearm and to five years of supervised release thereafter.                                          On

October 12, 2010, Johnston was sentenced to time served for his

first violation of supervised release, which was the five days

from    October         1    to    October        5,     2010.         In    2012,       Johnson   was

convicted of subsequent release violations and was sentenced to

sixty     months        of     imprisonment.                   He     appeals      this       five-year

sentence      raising         two       issues:      (1)       whether      the    district       court

erred by imposing a sentence that exceeded the maximum term of

imprisonment allowed by statute, given its failure to account

for    time    served         on    a     prior    revocation;             and    (2)    whether    his

sentence was procedurally and substantively reasonable.                                        For the

reasons that follow, we vacate and remand for resentencing.

               The      Government           concedes      that       Johnston       was      sentenced

five days beyond the five-year maximum sentence by virtue of his

first    revocation           sentence.            Thus,        we    vacate      and     remand    for

resentencing so that Johnston’s total sentence will not be in

excess of five years.                       See United States v. Hergott, 562 F.3d

968,    970-71       (8th          Cir.      2009)       (noting        under      the     applicable

version    of      18       U.S.C.      §    3583(e)(3)         (2006)      that     the      statutory

maximum       term      of     imprisonment              for        revocation      of     supervised

release       is   sixty          months      minus      any        time    served       on    previous

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revocations related to the same conviction).                     A sentence that

exceeds the statutory maximum is prejudicial even if only for a

minimal amount of time.              Glover v. United States, 531 U.S. 198,

203 (2001).

               Next, Johnston alleges that his sentence was otherwise

procedurally and substantively unreasonable.                     This court will

affirm a sentence imposed after revocation of supervised release

if   it   is    within    the   prescribed      statutory      range   and   is   not

plainly unreasonable.            United States v. Crudup, 461 F.3d 433,

437 (4th Cir. 2006).             We find no other reversible error and

decline    to     order    the       district    court    to     conduct     another

sentencing hearing on remand.              A sixty-month sentence would be

within Johnston’s advisory Sentencing Guidelines range of 51-63

months, as argued by the Government on appeal.                         We find no

reason not to apply the appellate presumption of correctness

allowed for a Guidelines range sentence.                 Gall v. United States,

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

               Accordingly,     we    vacate    and   remand    for    resentencing

consistent with this opinion.                 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.

                                                            VACATED AND REMANDED



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