                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-4240


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JAMES ANTONIO STRICKLAND, a/k/a Stricknine,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (5:97-cr-00135-F-1)


Submitted:   December 16, 2010            Decided:   December 27, 2010


Before GREGORY, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E.B. Holding, United States Attorney, Anne M.
Hayes,   Jennifer   P.   May-Parker,  Assistant   United States
Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               James          Strickland          appeals          from        the     sixty-month

sentence imposed pursuant to the revocation of his supervised

release.              Strickland        contends         the       sentence           was       plainly

unreasonable          because        the   court       erred       in    determining            he    had

committed         a    Grade     A    violation         and      in     considering         a    prior

reduction     to       his     original     sentence          based       on    the    retroactive

amendment to the crack cocaine sentencing guideline.                                   We affirm.

              A       sentence       imposed      after       revocation         of     supervised

release    should        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).                                                In

making     this        determination,            we     first         consider        whether        the

sentence is unreasonable.                   Id. at 438.               “This initial inquiry

takes a more deferential appellate posture concerning issues of

fact and the exercise of discretion than reasonableness review

for guideline sentences.”                   United States v. Moulden, 478 F.3d

652, 656 (4th Cir. 2007).                      In making our review, we “follow

generally     the       procedural         and    substantive            considerations              that

[are] employ[ed] in [the] review of original sentences, . . .

with   some       necessary          modifications          to     take    into       account         the

unique     nature        of     supervised            release      revocation          sentences.”

Crudup, 461 F.3d at 438-39.



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              A    sentence      imposed    upon       revocation       of    release         is

procedurally        reasonable     if    the     district       court    considered        the

Chapter    Seven     policy      statements      and      the   18   U.S.C.       §   3553(a)

(2006) factors that it is permitted to consider.                            See 18 U.S.C.

§   3583(e)       (2006);   Crudup,      461     F.3d     at    438-40.       A       sentence

imposed upon revocation of release is substantively reasonable

if the district court stated a proper basis for concluding that

the defendant should receive the sentence imposed, up to the

statutory maximum.          Crudup, 461 F.3d at 440.                 We will affirm if

the    sentence     is    not   unreasonable.            Id.    at   439.       Only     if    a

sentence      is    found   procedurally         or      substantively       unreasonable

will we “decide whether the sentence is plainly unreasonable.”

Id.

              Strickland        argues   that      the    district      court      erred      in

concluding that his most serious new law violation was a Grade A

violation rather than a Grade B violation.                       A Grade A violation

results from “conduct constituting a federal, state, or local

offense punishable by a term of imprisonment exceeding one year

that      . . .      is     a     controlled          substance         offense.”         USSG

§ 7B1.1(a)(1),        p.s..         A    controlled         substance        offense       for

purposes      of    § 7B1.1(a)(1),         p.s.,      includes       state    or       federal

crimes prohibiting the distribution of a controlled substance,

as well as the possession of a controlled substance with the

intent to distribute, and that are punishable by more than a

                                             3
year in prison.                USSG §§ 4B1.2(b), 7B1.1, p.s., comment. (n.3).

Any other offense punishable by more than a year in prison is a

Grade B violation.               USSG § 7B1.1(a)(2), p.s..                     The commentary to

USSG § 7B1.1, p.s. emphasizes that the “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 violation is to be based on

the defendant’s actual conduct.”                          USSG § 7B1.1, p.s., comment.

(n.1); see United States v. Jolibois, 294 F.3d 1110, 1114 (9th

Cir.     2002)         (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).

Further,       although           a     conviction             requires        proof        beyond      a

reasonable doubt, a violation of supervised release need only be

proved    by       a     preponderance         of    the       evidence.         See        18    U.S.C.

§ 3583(e)(3).

               Strickland             contends          that        his     supervised           release

violation was a Grade B violation because the drugs he admitted

to possessing were for his personal use and not intended for

distribution.            We conclude that Strickland failed to demonstrate

that    the    court       erred       in     finding        by      a    preponderance          of   the

evidence that the drugs were intended for distribution and not

personal       use.         The       court    did       not        err   in   determining            that

Strickland’s conduct constituted a Grade A violation nor abuse

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its    discretion    in   considering        its   prior   reduction      of    his

sentence,    and    Strickland    has    not   shown    that    the    sixty-month

sentence was plainly unreasonable.

            We therefore affirm the sentence.                  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




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