                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-4724


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

DERRICK VERNARD TERRY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:99-cr-00102-BO-1)


Submitted:    April 9, 2009                 Decided:   June 29, 2009


Before MICHAEL, SHEDD, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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:

            Derrick Vernard Terry appeals from the fifty-one month

sentence imposed after he was found in violation of the terms

and conditions of his supervised release.                             Terry alleges that

his sentence is plainly unreasonable because he was sentenced

based on a Grade A violation and his conduct only constituted a

Grade B violation.

            On    April      22,    2008,       the       Probation     Officer      filed   a

motion    for    revocation         against          Terry,      alleging       that     Terry

violated the terms of his supervised release by possessing a box

of ammunition for a .40 caliber semi-automatic handgun.                                  Terry

advised   Special      Agent       James    Ament         of    the   Bureau    of     Alcohol

Tobacco Firearms and Explosives (ATFE) that he purchased the

handgun   from    a    co-worker.           The       supervised       release    violation

worksheet    listed     Terry’s       violation            as   “criminal      conduct,”     a

Grade A violation.           With a criminal history category of VI, the

range of imprisonment was 51-60 months.

            Terry admitted the violation and stipulated that there

was a factual basis for it.                         Agent Ament testified that he

participated      in   the    search       of       the   residence     where     Terry    was

staying in relation to a state probation warrant out for Terry.

A partially full box of .40 caliber ammunition was found.                                Agent

Ament interviewed Terry about the ammunition and whether Terry

had a gun.       Terry stated that he purchased a handgun from a co-

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worker for his girlfriend’s protection when he was not at home

with her.

              Agent Ament also testified that he and Terry “talked

about some drugs for awhile, and I advised Mr. Terry, I said we

[k]now you are still dealing in drugs.                  And he said he might be

dabbling in it a little bit to pay some bills.”                             (J.A. 16).

Agent Ament also testified that Terry listed several individuals

in the Rocky Mount area from whom he “felt he could get drugs.”

(J.A. 17).          Terry later sent a letter to the probation office

stating      that    Agent   Ament   had       made   up    the     story   about      his

possible admission of drug distribution.

              The district court asked the Assistant United States

Attorney for the sentencing range and she replied the range was

51 to 60 months.             Defense counsel then asked the court for

leniency since Terry was subject to future prosecution.                                The

court   pronounced       a   sentence   of      51    months    without     additional

reasoning or discussion.

              We    review   a   sentence       imposed        as   a   result    of     a

supervised release violation to determine whether the sentence

was 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 was unreasonable.                          Id. at

438.    In    determining     reasonableness,          we   follow      generally      the

procedural and substantive considerations employed in reviewing

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original    sentences.        Id.         If       a   sentence     imposed       after     a

revocation is not unreasonable, the court will not proceed to

the    second   prong   of    the    analysis--whether             the   sentence         was

plainly    unreasonable.          Id.     at       438-39.      However,      a    court’s

improper    calculation      of     the    Guidelines          range   may    “render      a

sentence unreasonable.”           United States v. Jones, 531 F.3d 163,

170 (2d Cir. 2008) (citing Gall v. United States, 128 S. Ct.

586, 597 (2008)).

            Although    a    district          court    must    consider     the    policy

statements in Chapter Seven of the Sentencing Guidelines along

with the statutory requirements of 18 U.S.C. § 3583 (2006) and

18 U.S.C. § 3553(a) (2006), “‘the court ultimately has broad

discretion to revoke its previous sentence and impose a term of

imprisonment up to the statutory maximum.’”                       Crudup, 461 F.3d at

439 (quoting United States v. Lewis, 424 F.3d 239, 244 (2d Cir.

2005)) (internal quotation marks omitted).                        Finally, on review,

we will assume a deferential appellate posture concerning issues

of fact and the exercise of discretion.                         Crudup, 461 F.3d at

439.

            Terry argues that his sentence is unreasonable because

he was sentenced based on a Grade A violation, but that his

violation qualified only as a Grade B violation and therefore

the    Guidelines   range    was     improperly          calculated.         He    further

argues that his sentence is unreasonable because the district

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court did not provide a sufficient explanation of the sentence

to allow this court to review its reasonableness.                           Because Terry

did not raise the issue in the district court, the claim is

reviewed for plain error.                See Fed. R. Crim. P. 52(b); United

States    v.    White,       405     F.3d    208,    215       (4th    Cir.     2005).     To

demonstrate plain error, a defendant must establish that error

occurred,       that    it     was      plain,      and    that        it   affected      his

substantial rights.           United States v. Olano, 507 U.S. 725, 731-

32 (1993).       If a defendant establishes these requirements, the

court’s “discretion is appropriately exercised only when failure

to do so would result in a miscarriage of justice, such as when

the     defendant      is    actually       innocent      or     the    error    seriously

affects the fairness, integrity or public reputation of judicial

proceedings.”           Id.        at       736     (internal          quotation         marks

omitted).

               The conduct that constituted the violation could have

brought a prosecution under 18 U.S.C. § 922(g)(1) (2006).                              Under

Application Note 5 of U.S. Sentencing Guidelines Manual § 7B1.1,

“possession of a firearm . . . will generally constitute a Grade

B violation, because 18 U.S.C. § 922(g) prohibits a convicted

felon    from    possessing        a    firearm.”          The    conduct       that     Terry

admitted and that was most specifically outlined in the motion

for revocation involved only the possession of ammunition and

admission that he had purchased a firearm.                              With a Grade B

                                               5
violation and a criminal history category of VI, the Guidelines

range would have been 21 to 27 months.

               The Government argues that there was no plain error in

sentencing Terry for a Grade A violation because Agent Ament

testified      that      Terry   admitted            that    he    was      still   dealing    in

drugs.     A felony offense that is a controlled substance offense

is     conduct      that    constitutes          a     Grade       A     violation.          USSG

§ 7B1.1(a)(1).           Agent Ament’s testimony was that Terry admitted

that he might be dabbling in distribution and provided names of

dealers from whom he could get drugs.                             The Government contends

that    the    AUSA      maintained     below         that    Terry      was   still    dealing

drugs,    and       that    Terry     did    not       counter         or    object    to    this

argument.

               The Guidelines state that the “grade of violation does

not depend upon the conduct that is the subject of criminal

charges or of which the defendant is convicted in a criminal

proceeding.         Rather, the grade of the violation is to be based

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

Therefore the Government contends that all of Terry’s alleged

conduct       may   be     considered       in       determining         the   grade    of    the

violation.

               The district court did not make any findings on the

alleged drug distribution.              Although Terry did not contest Agent

Ament’s testimony at the hearing, he did send a letter to his

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probation      officer       stating      that       Agent    Ament’s       summary        of    his

interview with him was false.                        This letter was introduced as

evidence at the hearing.               Further, without a firm statement from

the court that it was finding a violation based upon the alleged

drug     distribution,         it    can       be    assumed        that     the     court      was

confirming the charge detailed in the motion for revocation,

which was based only on the ammunition and firearm.

               As purely advisory policy statements, the sentencing

ranges     provided      by     USSG       §    7B1.4,       p.s.,     do     not     bind       the

sentencing court.            See United States v. Davis, 53 F.3d 638, 640

n.6,     642    (4th    Cir.        1995).          The    district        court     has     broad

authority to revoke the supervised release sentence and impose a

term of imprisonment up to the statutory maximum.                                  Crudup, 461

F.3d at 440.          Therefore, the district court could have sentenced

Terry     up    to     the     five-year            statutory       maximum.           However,

considering that it sentenced Terry at the lowest end of the

Guidelines          range,     we    conclude         that      there       exists     a        non-

speculative basis to infer prejudice.

               We    therefore       vacate         the     judgment        and     remand      for

further    proceedings         to     determine           whether     the    district        court

found a Grade A or Grade B violation, calculate a new Guidelines

range,    if    necessary,          and    resentence         Terry     accordingly.             We

dispense       with     oral     argument           because     the     facts       and      legal



                                                7
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                             VACATED AND REMANDED




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