                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4328


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MISTY AUTUMN GRAFTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins.     John Preston Bailey,
District Judge. (2:13-cr-00034-JPB-JSK-4)


Submitted:   November 20, 2015            Decided:   December 17, 2015


Before DUNCAN, DIAZ, and HARRIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Stephen G. Jory, MCNEER, HIGHLAND, MCMUNN & VARNER, L.C.,
Elkins, West Virginia, for Appellant. William J. Ihlenfeld, II,
United States Attorney, Tara N. Tighe, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Misty Autumn Grafton appeals the district court’s judgment

sentencing her to 37 months’ imprisonment following revocation

of her probation.              On appeal, Grafton argues that her sentence

is    plainly       unreasonable.              We       vacate    Grafton’s      sentence      and

remand for resentencing.

       We   will     affirm      a   sentence            imposed     after    revocation        of

probation      if    it   is    within         the      statutory      maximum      and   is   not

“plainly unreasonable.”              United States v. Moulden, 478 F.3d 652,

656-57 (4th Cir. 2007).                       When reviewing whether a revocation

sentence is plainly unreasonable, we first assess the sentence

for unreasonableness, “follow[ing] generally the procedural and

substantive         considerations            that       we   employ    in    our    review    of

original sentences.”             United States v. Crudup, 461 F.3d 433, 438

(4th    Cir.        2006).           A        probation          revocation      sentence       is

procedurally         reasonable          if    the       district    court    considers        the

Chapter Seven advisory policy statement range and the 18 U.S.C.

§    3553(a)    (2012)    factors.              See      18   U.S.C.    §    3565(a)      (2012);

Moulden, 478 F.3d at 657.

       Here, although the district court considered the § 3553(a)

factors, it failed to calculate and indicate consideration of

the applicable policy statement range.                              We therefore conclude

that Grafton’s sentence is procedurally unreasonable.



                                                    2
     Having       found    the    sentence         unreasonable,       we   assess      next

whether it is plainly unreasonable.                         “To determine whether a

sentence     is    plainly       unreasonable,        this     Court     looks     to     the

definition of ‘plain’ used in plain-error analysis.”                                United

States v. Thompson, 595 F.3d 544, 547–48 (4th Cir. 2010).                               “For

a sentence to be plainly unreasonable, . . . it must run afoul

of clearly settled law.”           Id. at 548.

     The district court’s obligation to consider the advisory

policy statement range is settled law in this circuit.                           Moulden,

478 F.3d at 657.            Thus, the court’s failure to consider the

advisory     policy       statement      range       renders       Grafton’s     sentence

plainly unreasonable.

     Because Grafton did not preserve this claim for appellate

review, our review is for plain error.                        See Fed. R. Crim. P.

52(b).     To establish plain error, Grafton must demonstrate that

(1) the district court committed an error; (2) the error was

plain;   and      (3)     the    error   affected       her        substantial     rights.

Henderson v. United States, 133 S. Ct. 1121, 1126 (2013).                               Even

if   these     requirements        are    met,        however,       this   Court       will

“exercise    [its]      discretion       to       correct    the    error   only     if    it

seriously affects the fairness, integrity or public reputation

of judicial proceedings.”             United States v. Nicholson, 676 F.3d

376, 381 (4th Cir. 2012) (internal quotation marks omitted).



                                              3
      As stated, we recognize a sentencing error and find the

sentence to be plainly unreasonable because it runs afoul of

clearly established law.        See Moulden, 478 F.3d at 656; Crudup,

461 F.3d at 439.      Additionally, because the sentence imposed by

the district court was well above the advisory policy statement

range calculated by the probation officer, Grafton’s substantial

rights were affected by the error.             We cannot tell whether, had

the     district   court     calculated       and    considered     the    policy

statement    range,   it   might    have     given   Grafton   a   lower   prison

term.    See Thompson, 595 F.3d at 548.

      Accordingly,    we   vacate     Grafton’s      revocation    sentence     and

remand for resentencing.        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




                                        4
