UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 00-4268

NELSON JAMES ABLE,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-91-3-C)

Submitted: September 29, 2000

Decided: October 17, 2000

Before LUTTIG, WILLIAMS, and KING, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Douglas B. Evans, Sr., Washington, D.C., for Appellant. Robert P.
Crouch, Jr., United States Attorney, Jean B. Hudson, Assistant United
States Attorney, Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

Nelson James Able pled guilty to conspiracy to distribute cocaine
base in violation of 21 U.S.C. § 846 (1994). Able was subsequently
sentenced to sixty months' imprisonment and a five-year term of
supervised release. In addition to imposing the standard conditions of
release, the court imposed several special conditions including man-
datory participation in a treatment program for substance abuse.
While on supervised release, Able committed several violations. After
a revocation hearing, the court found that Able violated the terms of
his supervised release and revoked his supervised release, sentencing
Able to a 52-month sentence. Able now appeals the revocation of his
supervised release and the imposition of the 52-month sentence argu-
ing that: (1) the district court's finding that he possessed marijuana
was unsupported by the evidence; (2) his violation was improperly
classified as a Grade A violation; and (3) his counsel was ineffective
at the revocation hearing. We vacate and remand.

This Court reviews for abuse of discretion the district court's order
imposing a sentence after revocation of supervised release. See United
States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). The district court
abuses its discretion when it fails or refuses to exercise its discretion
or when its exercise of discretion is flawed by an erroneous legal or
factual premise. See James v. Jacobson, 6 F.3d 233, 239 (4th Cir.
1993). The district court may revoke a defendant's terms of super-
vised release if it finds by a preponderance of the evidence that he
violated the terms of release. See 18 U.S.C.A. § 3583(e)(3) (West
Supp. 2000).

Under 18 U.S.C.A. § 3583(g)(1), revocation is mandatory if the
defendant possessed a controlled substance in violation of terms of his
supervised release. Proof that a defendant intentionally used a con-
trolled substance is sufficient to establish possession of that substance
within the meaning of § 3583(g). See United States v. Battle, 993 F.2d
49, 50 (4th Cir. 1993); see also United States v. Clark, 30 F.3d 23,
25 (4th Cir. 1994)(voluntary and knowing ingestion of the substance
constitutes possession). A violation of supervised release need only be
proven by a preponderance of the evidence. See 18 U.S.C.A.

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§ 3583(e)(3); see also United States v. Woodrup, 86 F.3d 359, 361
(4th Cir. 1996). We find that the district court did not err in relying
on a probation officer's finding, based on a positive urine test, that
Able possessed marijuana. Accordingly, the court properly revoked
Able's supervised release term.

We agree with Able, and the Government concedes, however, that
Able's possession did not constitute a Garde A violation. See
U.S.S.G. §§ 7B1.1(a)(1), 4B1.2(b) (stating that simple possession of
controlled substance does not constitute "controlled substance
offense"). Because Able's possession does not qualify as a "controlled
substance offense" under the meaning of § 7B1.1, the conduct cannot
be classified as a Grade A violation.

Because Able's conduct is more properly classified as a Grade B
violation, see U.S.S.G. § 7B1.1(a)(2), we vacate Able's sentence and
remand to the district court for resentencing consistent with this opin-
ion. As to Able's claims of ineffective assistance of counsel, we note
that such claims are generally not cognizable on direct appeal. See
United States v. King, 119 f.3d 290, 295 (4th Cir. 1997).

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

VACATED AND REMANDED

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