                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4642


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ROBERT LEWIS PRATT,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Durham.     James A. Beaty, Jr.,
Chief District Judge. (1:07-cr-00094-JAB-1)


Submitted:   June 17, 2010                 Decided:   August 20, 2010


Before MOTZ, DAVIS, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Brian M. Aus, Durham, North Carolina, for Appellant. Graham Tod
Green, Assistant United States Attorney, Winston-Salem, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Robert       Lewis     Pratt     appeals       the        district        court’s

judgment revoking his supervised release and sentencing him to

thirty   months’    imprisonment.           Pratt’s       counsel         filed   a    brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating

that there are no meritorious issues for appeal, but questioning

the reasonableness of Pratt’s sentence on the ground that it was

premised   upon    an    improper     calculation         of    the        Chapter    Seven

policy   statement      range    in   the       federal   sentencing          guidelines.

Specifically,      counsel       questions       whether       the        district     court

properly concluded that Pratt committed a Grade A violation of

supervised release.        Pratt was advised of his right to file a

pro se supplemental brief, but he did not file one.

           We     review     a    sentence       imposed       as     a    result     of     a

supervised release violation to determine whether it is plainly

unreasonable.      United States v. Crudup, 461 F.3d 433, 437 (4th

Cir. 2006).      The first step in this analysis is a determination

of whether the sentence is unreasonable.                        Id. at 438.             This

court,   in     determining      reasonableness,          follows          generally       the

procedural and substantive considerations employed in reviewing

original sentences.        Id.     However, “[t]his initial inquiry takes

a more ‘deferential appellate posture concerning issues of fact

and the exercise of discretion’ than reasonableness review for

guidelines sentences.”           United States v. Moulden, 478 F.3d 652,

                                            2
656 (4th Cir. 2007) (quoting Crudup, 461 F.3d at 438).                                  If a

sentence imposed after a revocation is not unreasonable, we will

not proceed to the second prong of the analysis — whether the

sentence was plainly unreasonable.                Crudup, 461 F.3d at 439.

             Under U.S. Sentencing Guidelines Manual § 7B1.1(a)(1)

(2007), 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).           A controlled substance

offense for purposes of § 7B1.1(a)(1) 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

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

cmt. (n.1).

             Pratt argues that his most serious supervised release

violation was possession of cocaine, a Grade B violation, and

that he cannot be deemed to have committed a Grade A violation

because     the   North    Carolina      state     charges      against           him   that

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amounted to a Grade A violation were dismissed.                         This is simply

incorrect.     A violation of the terms of supervised release is

determined on the basis of a defendant’s conduct and may be

found     whether    Pratt       was    ever        convicted    of    any    particular

offense.     See United States v. Jolibois, 294 F.3d 1110, 1114

(9th Cir. 2002). 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) (2006).

            Here,        Pratt     originally          had      been     charged        with

possession with intent to manufacture, sell, or deliver Schedule

II and VI controlled substances, in violation of N.C. Gen. Stat.

§ 90-95(b)(1), (2) (2007), punishable by more than a year in

prison.     N.C. Gen. Stat. § 15A-1340.17(c), (d) (2007).                        Although

these   charges      ultimately         were       dismissed,    Pratt       admitted    to

conduct constituting the felony controlled substance offense of

possession    with       intent    to   distribute       a   controlled        substance,

when he acknowledged that he had been using drugs with “some

girls” and “ran out to get more drugs.”                      See State v. Mack, 656

S.E.2d 1, 13 (N.C. Ct. App. 2008) (discussing elements of N.C.

Gen. Stat. § 90-95(a) offense).                    Accordingly, we conclude that a

preponderance       of    the    evidence      supported      the     district    court’s

finding that Pratt committed a Grade A violation.



                                               4
              In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We   therefore    affirm      the   judgment    revoking     Pratt’s   supervised

release and imposing a thirty-month term of imprisonment.                       This

court requires that counsel inform Pratt, in writing, of the

right to petition the Supreme Court of the United States for

further review.        If Pratt requests that a petition be filed, but

counsel believes that such a petition would be frivolous, then

counsel   may    move    in    this    court   for   leave    to   withdraw     from

representation.        Counsel’s motion must state that a copy thereof

was served on Pratt.          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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