UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 97-4225

THOMAS ALVIS MARTIN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Samuel G. Wilson, Chief District Judge.
(CR-91-55)

Submitted: September 30, 1997

Decided: November 13, 1997

Before MURNAGHAN and WILKINS, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Gary M. Bowman, Roanoke, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Thomas Alvis Martin appeals the 21-month sentence imposed by
the district court upon revocation of his supervised release. He con-
tends that the district court erred in deciding that he had committed
a Grade B violation. See U.S. Sentencing Guidelines Manual,
§ 7B1.1, p.s. (1995). We affirm.

In the first year of his three-year term of supervised release, Martin
tested positive for cocaine use a dozen times. He began a course of
outpatient drug counseling but failed to keep his appointments. At his
revocation hearing, Martin did not dispute that he violated his super-
vised release, but he contested the probation officer's conclusion that
Martin had committed a Grade B violation, that is, a"federal, state,
or local offense punishable by a term of imprisonment exceeding one
year." USSG § 7B1.1(a)(2), p.s. Because Martin was in criminal his-
tory category VI, the Grade B violation gave him a revocation guide-
line range of 21-27 months. See USSG § 7B1.4, p.s. He argued that
only federal law should apply and that possession of cocaine should
be a Grade C violation because it is punishable by no more than one
year of imprisonment under federal law. See 21 U.S.C.A. § 844 (West
Supp. 1997). Had the court found that Martin committed a Grade C
violation, his guideline range would have been 8-14 months. How-
ever, the district court found that state offenses were included in the
guideline definition of a Grade B violation.

Martin first argues on appeal that the district court based its deter-
mination on the mistaken belief that a felony cannot be a Grade C
violation and erred in looking to North Carolina law rather than fed-
eral law to find that he had committed a Grade B violation. However,
our review of the record of the revocation hearing discloses that the
district court's decision was properly focused on whether Martin's
conduct was punishable by a term of imprisonment exceeding one
year.

Next, Martin contends that, where both state and federal laws have
been broken, only federal law should be considered to determine the
grade of violation. His position is flatly contradicted by language of

                    2
USSG § 7B1.1. In support of his position, he relies on dicta in United
States v. Alli, 929 F.2d 995, 998 (4th Cir. 1991), stating that the
defendant in that case, who violated his probation by using cocaine
in North Carolina, had committed a Grade C violation. However, Alli
presented a different issue from the one raised here.* Additionally,
the statement Martin relies on took into account the information in
Alli's revocation petition and the findings made by the district court
in that case, which may not parallel exactly the facts in this case. The
North Carolina statute which establishes the state penalty for cocaine
possession was amended in 1989, 1990, 1991, and 1995, see N.C.
Gen. Stat. § 90-95 (1996). It is not clear what penalty applied to Alli's
conduct.

Currently, § 90-95 provides that possession of one gram or more
of cocaine is a Class I felony. Under N.C. Gen. Stat. § 15A-1340.17,
a Class I felony is punishable by a prison term of greater than one
year. Consequently, we find that the district court did not err in find-
ing that Martin committed a Grade B violation of his supervised
release.

The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

AFFIRMED
_________________________________________________________________
*The issue in Alli was whether a defendant whose probation was
revoked could be sentenced to a term of imprisonment in excess of the
guideline range applicable at the time of his original sentencing.

                     3
