                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 11-4966


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

RAYMONT DAVID BROWN,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00136-TDS-1)


Argued:   September 21, 2012                 Decided:   October 11, 2012


Before WILKINSON and DAVIS, Circuit Judges, and Max O. COGBURN,
Jr., District Judge, Western District of North Carolina, sitting
by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Gregory Davis, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Winston-Salem, North Carolina, for Appellant.     Angela Hewlett
Miller, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North
Carolina, for Appellee.   ON BRIEF: Louis C. Allen III, Federal
Public Defender, Greensboro, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Terri-Lei O'Malley,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

                As revealed by a positive test of his urine, Appellant

Raymont        David       Brown     possessed          cocaine      while   on      supervised

release        for    an    earlier      conviction          for    distribution        of    crack

cocaine.        Upon its determination that Brown had thereby violated

the terms of supervised release, the district court classified

the violation as a Grade B violation rather than a less serious

Grade      C    violation,           reasoning         that     Brown     could     have       been

prosecuted for a recidivist drug offense under federal law.                                     The

court sentenced Brown to 24 months in prison, the statutory

maximum        revocation         sentence.       Despite          our   doubt     as    to     the

correctness           of    the    district       court’s          reasoning,      because      the

sentence        was        neither      illegal        nor    plainly     unreasonable,          we

affirm.

                                                  I.

                On July 17, 2010, Brown was released under supervision

after serving 96 months in prison for distribution of crack

cocaine, in violation of 21 U.S.C. § 841(a)(1).                                 J.A. 6.        Less

than two months later, he tested positive for cocaine.                                       Id. at

7,   21,       26.          On    May    18,   2011,         Brown’s     probation       officer

petitioned           the    district      court        to     revoke     Brown’s    supervised

release.1


     1
       J.A. 6–12. The probation officer asserted that Brown had
(Continued)
                                                  2
          At   a   revocation   hearing   on   August   17,    2011,   the

district court found that Brown had violated the conditions of

his release by, inter alia, possessing cocaine.               J.A. 26–27.

But the court reserved imposing a sentence because the parties

disputed whether    Brown’s most severe violation--possession of

cocaine-- was a Grade B or a Grade C violation of supervised

release under the advisory sentencing guidelines.2

          Brown faced a statutory maximum revocation sentence of

24 months in prison.     See J.A. 10, 15; 18 U.S.C. § 3583(e)(3).

If the court classified his cocaine possession as a Grade B



violated the conditions of his supervised release in numerous
ways: (1) testing positive for cocaine; (2) being terminated
from a substance abuse treatment program; (3) being convicted in
state court of misdemeanor assault and misdemeanor breaking and
entering; and (4) failing to work regularly, report to his
probation officer, and submit monthly supervision reports.   Id.
at 6–7.   On August 10, 2011, the probation officer amended the
petition to allege another violation: a state conviction for
misdemeanor resisting a public officer. Id. at 13.
     2
       See J.A. 27, 34–37.    The parties agreed that the other
violations were Grade C violations because they were based on
conduct punishable under state or federal law by imprisonment
for one year or less.      U.S. Sentencing Guidelines Manual §
7B1.1(a) (2003).   A Grade B violation is conduct punishable by
imprisonment for more than one year.    Id.   We employ the 2003
edition of the sentencing guidelines manual because that version
was in effect at the time of Brown’s original sentencing in
2004.   See United States v. Smith, 354 F.3d 171, 174 (2d Cir.
2003)   (“[S]upervised  release  sanctions   are   part  of  the
punishment for the original offense, and . . . . the sanctions
of the original offense remain applicable, despite subsequent
amendment.”) (citing Johnson v. United States, 529 U.S. 694,
700–02 (2000)).



                                   3
violation, the advisory sentencing range was 21-24 months in

prison.3         If it was a Grade C violation, the advisory sentencing

range      was    only    8–14   months     in     prison.     See    U.S.       Sentencing

Guidelines Manual § 7B1.4.

                 Brown    argued    that      his    possession       was    a     Grade    C

violation in light of United States v. Simmons, 649 F.3d 237

(4th Cir. 2011) (en banc).4                   Brown argued that Simmons limited

the court to considering only the sentence he could receive for

simple       possession--8-to-12           months’     imprisonment         under     North

Carolina         law--not   what    a    hypothetical        “worst    case”       offender

could receive.           See J.A. 30–34.

                 The   Government       conceded     that    Brown’s    possession          of

cocaine was a Grade C violation under North Carolina law, but

argued that it was a Grade B violation under federal law.                                  See

J.A.       32.     Specifically,        the    Government     argued        that    Brown’s

possession was a violation of 21 U.S.C. § 844, punishable by up


       3
        Brown’s criminal history category at the original
sentencing was VI. J.A. 27. See also U.S. Sentencing Guidelines
Manual § 7B1.4 (revocation table) (2003) (providing for an
advisory sentencing range of 21–27 months); 18 U.S.C. §
3583(e)(3) (providing a statutory maximum sentence of 24 months
for Class C felonies).
       4
       See J.A. 30–34. Simmons, which was published the same day
as Brown’s revocation hearing, held that courts could not rely
on   hypothetical   enhancements  or   aggravating  factors   in
determining whether a defendant had been convicted of a felony
drug offense under the Controlled Substances Act. Simmons, 649
F.3d at 241, 243–50.


                                               4
to    two    years   in   prison     because     Brown   had   a   prior   drug

conviction--the crime for which he was on supervised release.

              Brown countered that the enhanced punishment was not

applicable because the Government had not charged him with a

separate offense or filed a notice of prior conviction pursuant

to 21 U.S.C. § 851.5 See J.A. 42.

              On September 1, 2011, the district court found that

Brown’s      possession   was   a    Grade   B   violation,    reasoning   that

unpublished Fourth Circuit opinions had affirmed sentences that

treated drug possession as a Grade B violation; published and

unpublished decisions from other circuits had also affirmed such

sentences; and Brown’s prior conviction--the underlying offense

for which he was on supervised release--made his possession a

felony punishable by more than one year of imprisonment under §

844. J.A. 40, 50, 53–54.            The court found that Brown had “shown

a total lack of respect and disregard for . . . the rules of


       5
           Section 851 provides that

       No person who stands convicted of a[] [drug] offense .
       . . shall be sentenced to increased punishment by
       reason of one or more prior convictions, unless before
       trial, or before entry of a plea of guilty, the United
       States attorney files an information with the court
       (and serves a copy of such information on the person
       or counsel for the person) stating in writing the
       previous convictions to be relied upon.

     The parties agree that § 851 has no actual application in
     revocation proceedings.


                                        5
supervised release,” and imposed “the 24 months that’s available

as a sentence.”           Id. at 65, 67.



                                               II.

                                               A.

                 “This Court reviews whether or not sentences imposed

upon revocation of supervised release are within the prescribed

statutory        range     and    are    not    ‘plainly       unreasonable.’”        United

States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010).

                 To determine if a sentence is plainly unreasonable, we

apply       a    two-step       inquiry.    First,      we    determine         whether     the

sentence was “unreasonable at all,” see Thompson, 595 F.3d at

546,        taking        into     account          “procedural          and     substantive

considerations”           and    “the    unique      nature    of   supervised       release

revocation sentences,”               United States v. Crudup, 461 F.3d 433,

438–39 (4th Cir. 2006).                 A sentence is procedurally unreasonable

when       the   judge    improperly       calculates        the    advisory      guidelines

sentence,         fails     to    adequately         explain       the    sentence     after

considering        the     Sentencing      Commission’s         policy         statements   on

violations of supervised release, or fails to consider other

pertinent sentencing factors in 18 U.S.C. § 3553(a).6 See Gall v.


       6
       These statutory factors include the “characteristics of
the defendant,” the “nature and circumstances of the offense,”
and the need to “afford adequate deterrence to criminal
(Continued)
                                                6
United States, 552 U.S. 38, 51 (2007); Thompson, 595 F.3d at

547; Crudup, 461 F.3d at 438–40.                     A sentence is substantively

unreasonable if the sentencing court fails to sufficiently state

a proper basis for its conclusion.                  See Crudup, 461 F.3d at 440.

            If     the   sentence       is        procedurally     or   substantively

unreasonable, we proceed to the second step: determining whether

the sentence is “plainly unreasonable,” that is, “clear[ly]” or

“obvious[ly]” unreasonable.             Crudup, 461 F.3d at 439 (emphasis

in    original).         A   sentence        is     plainly   unreasonable    if   it

contravenes “clearly settled” law.                    Thompson, 595 F.3d at 548.

A    sentence    is   also    plainly    unreasonable         if    the   appellant’s

objection would have been indefensible at sentencing because of

existing law but a supervening decision prior to appeal has

reversed that well-settled law.7



                                         B.

            Brown argues on appeal that his sentence is “clearly

unreasonable” because the district court abused its discretion

in classifying his cocaine possession as a Grade B violation.



conduct.”       18 U.S.C. §§ 3553(a), 3583(e).
       7
       See Thompson, 595 F.3d at 548 (citing United States v.
Hughes, 401 F.3d 540, 547 (4th Cir. 2005)).     In Thompson, we
vacated the revocation sentence because the district court had
failed to provide any reasons for its sentence, and this failure
“contravened clear circuit precedent.” Id.


                                             7
See    Appellant’s          Br.      7–10.         He     contends        that,      because       the

Government cannot file a § 851 notice of prior conviction in a

revocation proceeding, drug possession during supervised release

should       be    treated      as    a     misdemeanor           and,    thus,      a     Grade    C

violation.8

                  The    Government        counters       that    this     Court      and    others

have       held    that    “a     positive         drug    test      by    an     individual       on

supervised release constitutes a Grade B violation,” and the

notice       requirement        of     §     851    does       not    apply     to       revocation

proceedings.            Appellee’s Br. 12–16.

                  We cannot find that the district court’s imposition of

the    maximum          authorized     sentence           on   this      record      was    plainly

unreasonable.            First, we have published no opinion on the proper

classification of drug possession as a violation of supervised

release; indeed, we have issued several unpublished per curiam

opinions          (all    predating        our      en     banc      decision      in      Simmons)

affirming revocation sentences that construed possession as a

       8
       See Appellant’s Br. 8 (“for a subsequent simple possession
offense to be eligible for an enhanced punishment, i.e., to be
punishable as a felony, the Controlled Substances Act requires
that a prosecutor charge the existence of the prior simple
possession conviction before trial, or before a guilty plea”)
(quoting Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2581–82
(2010)).   See also id. at 7–10.     Carachuri-Rosendo held that
“when a defendant has been convicted of a simple possession
offense that has not been enhanced based on the fact of a prior
conviction, he has not been ‘convicted’ under [the Immigration
and Nationality Act] of a ‘felony punishable’ as such ‘under the
Controlled Substances Act[.]’” 130 S. Ct. at 2589–90.


                                                   8
Grade B violation.9   Thus, the district court did not contradict

clearly settled law at the time of the revocation hearing.            See

Thompson, 595 F.3d at 548.       Second, a Grade B classification

does not violate a supervening precedent, see id., as neither

Carachuri-Rosendo nor Simmons addressed drug possession in the

context of revocation proceedings.        Finally, in light of the

probation officer’s allegations of Brown’s myriad violations of

supervised release, all within one year of his completion of an

eight-year custodial sentence, including undisputed convictions

in state court for new offenses, we are hard pressed to discern

an abuse of discretion by the district court in its selection of

an appropriate sentence.10      Accordingly, the district court’s

imposition of a 24 month sentence was not plainly unreasonable.



                                 III.

          For   the   reasons   set   forth,   the   judgment    of   the

district court is

                                                                AFFIRMED.


     9
       See United States v. Jemerson, 132 F. App’x 48 (4th Cir.
2005) (per curiam); United States v. Justice, 70 F. App’x 719,
720 (4th Cir. 2003) (per curiam) (citing United States v.
Trotter, 270 F.3d 1150, 1153–54 (7th Cir. 2001)); United States
v. Griffin, 201 F.3d 438 (table), 1999 WL 1080107 (4th Cir.
1999) (per curiam).
     10
        Brown argued on brief, and confirmed at oral argument,
that our standard of review is abuse of discretion.


                                  9
