                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-2750
                         ___________________________

                              United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                               Clifton Lamon Thomas

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                 for the Eastern District of Arkansas - Little Rock
                                  ____________

                             Submitted: March 9, 2015
                               Filed: April 17, 2015
                                    [Published]
                                  ____________

Before MURPHY, MELLOY, and SHEPHERD, Circuit Judges.
                          ____________

PER CURIAM.

       Clifton Thomas appeals the 33 month sentence imposed by the district court
after revocation of his supervised release. Jones argues, and the government agrees,
that the district court erred by determining he had committed a grade A violation. We
reverse and remand for resentencing.
       In December 2008, Thomas pleaded guilty to distribution of cocaine base in
violation of 21 U.S.C. § 841(a)(1). The district court imposed the sentence specified
in the plea agreement which was 72 months imprisonment and four years supervised
release. Thomas began supervised release in April 2013. On January 14, 2014, his
probation officer petitioned for revocation for alleged violations including testing
positive for marijuana use and failure to report for drug testing. At a hearing on
February 28, the district court found a grade C violation but decided to continue the
case before sentencing "to see how defendant will comply with the conditions of
release." The order continuing the case for 30 days was entered on March 13.

       On March 15, 2014, Thomas was arrested for battery, aggravated assault,
possession of a firearm, criminal mischief, and fleeing an officer following an
incident in a nightclub parking lot. The government again petitioned for revocation
of supervised release. Little Rock, Arkansas police officer Johnny Gilbert testified
at the revocation hearing. He said that about 3:30 a.m. on March 15, 2014, he was
off duty and working as a private security guard for the Elevations nightclub. Near
the exit of the nightclub's overflow parking lot, Gilbert saw a man crouch down and
point a semiautomatic pistol into the parking lot. Then he heard a "pop-pop-pop
noise" and saw "muzzle flash." The man fired "[e]ight to ten shots." Gilbert drove
toward the man in his patrol car with his lights activated, and the man ran toward a
Toyota Camry. Gilbert observed that the shooter was African American and was
wearing a dark jacket and a white T-shirt.

      As the shooter entered his car, Gilbert activated his siren. The shooter drove
off and Gilbert followed in pursuit, notifying other officers of the situation. Gilbert
followed the car for "several minutes" as it traveled at speeds over 60 miles per hour
through a residential neighborhood with a speed limit of 25 miles per hour. There
was no other traffic on the road, and Gilbert never lost sight of the car. The pursuit
ended when the shooter drove into the parking lot of a doughnut shop and fled on
foot.

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       Gilbert kept sight of the shooter while also checking the Camry to make sure
no one else was inside. He saw the shooter run up a hill and climb a wooden fence
and noticed that the shooter had a disfigured right hand. Gilbert communicated this
information to other officers. Officer Byron Harper drove to the other side of the
wooden fence where he pursued Thomas and then arrested him "less than a minute"
after Gilbert had seen the shooter jump the fence. When he was arrested Thomas was
wearing a white T-shirt and a black jacket, and his clothing had mud and wood
fragments on it, consistent with climbing the wooden fence. Thomas's right hand is
disabled, and Gilbert identified Thomas as the person Harper had apprehended.

      After Thomas had been arrested, Gilbert returned to the nightclub and spoke
with other officers who had responded to the scene. He "determined that one person
had been shot, another person had been shot at, and multiple vehicles had been shot
up." Gilbert did not determine whether or not Thomas had been involved in the
shooting. Two different caliber of ammunition were found at the crime scene, and no
weapon was ever recovered.

       The government did not call any witnesses other than Gilbert. Based on his
testimony, the district court found that Thomas "possessed a firearm and fired it near
the Elevations nightclub" and then "fled." The court declined to make findings about
battery, assault, or damage to cars "because that was not the heart of the evidence"
and because the court concluded that "[t]he other evidence is enough to be a Grade
A violation." Thomas did not object. Based on this finding and Thomas's criminal
history category VI, the district court calculated a guideline range of 33 to 41 months
in custody and sentenced Thomas to 33 months. Thomas appeals.

      For the first time on appeal, Thomas argues that the evidence presented at the
revocation hearing was insufficient to prove a grade A violation. The government
agrees that this violation category was incorrect. We review a sentence imposed upon
revocation of supervised release for abuse of discretion. United States v. Richey, 758

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F.3d 999, 1001 (8th Cir. 2014). When, as here, a defendant did not object during
sentencing to procedural errors such as improper calculation of the guideline range,
our review is for plain error. United States v. Miller, 557 F.3d 910, 916 (8th Cir.
2009). Under this standard, Thomas must show that "(1) there was error, (2) the error
was plain, and (3) the error affected his substantial rights." Id. In the sentencing
context, an error is prejudicial and thus affects the defendant's substantial rights "only
if there is a reasonable probability that the defendant would have received a lighter
sentence but for the error." Id.

      Under the sentencing guidelines, a grade A violation is

      conduct constituting (A) a federal, state, or local offense punishable by
      a term of imprisonment exceeding one year that (i) is a crime of
      violence, (ii) is a controlled substance offense, or (iii) involves
      possession of a firearm or destructive device of a type described in 26
      U.S.C. § 5845(a); or (B) any other federal, state, or local offense
      punishable by a term of imprisonment exceeding twenty years.

U.S.S.G. § 7B1.1(a)(1). The record here did not show such a violation. The district
court did not find that Thomas had committed a "crime of violence," and there was
no evidence that controlled substances or a specified type of firearm were involved.

       The conduct proven at the revocation hearing also did not constitute an
Arkansas "offense punishable by a term of imprisonment exceeding twenty years."
U.S.S.G. § 7B1.1(a)(1)(B). The district court determined that Thomas, who is a
convicted felon, possessed a firearm, shot the firearm, and fled. The government
argues that this conduct constituted the state offenses of being a felon in possession
and fleeing. Neither of these crimes is punishable by more than 20 years in prison.
Under Arkansas law, possession of a firearm by a felon is at most a class B felony,
punishable by no more than 20 years. Ark. Code Ann. §§ 5-73-103(c)(1); 5-4-
401(a)(3). Unless the flight causes serious physical injury to another, fleeing by


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vehicle is at most a class D felony, punishable by up to six years. Ark. Code Ann.
§§ 5-54-125(d); 5-4-401(a)(5).

       The district court's findings support a grade B violation. "[C]onduct
constituting any other federal, state, or local offense punishable by a term of
imprisonment exceeding one year" is a grade B violation of the conditions of
supervised release. U.S.S.G. § 7B1.1(a)(2). Without any additional aggravating
circumstances, a person who has been convicted of a felony and who possesses a
firearm has committed a class D felony under Arkansas law, punishable by up to six
years in prison. Ark. Code Ann. §§ 5-73-103(c)(2); 5-4-401(a)(5). The record here
shows that Thomas has been convicted of at least one felony: distribution of cocaine
base, the crime of conviction for which he had been sentenced to supervised release.
Officer Gilbert's testimony supported the district court's finding that Thomas had
possessed a firearm. The conduct proven at the hearing thus amounted to a grade B
violation of supervised release.

      In conclusion, the evidence presented at the revocation hearing did not support
a grade A violation, and the classification error was plain. Given the lower guideline
range for a grade B violation, there was a reasonable probability that Thomas would
have received a lower sentence without this error. Since the 33 month sentence
imposed was a reversible error, the matter must be remanded for resentencing.

     The judgment of the district court is therefore reversed, and the case is
remanded for resentencing consistent with this opinion.
                     ______________________________




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