                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4196


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CALVIN EDWARD   MILLER,   a/k/a   Killer,    a/k/a   Calvin   Elwood
Miller,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville. Glen E. Conrad, Chief
District Judge. (3:11-cr-00020-GEC-BWC-1)


Submitted:   September 28, 2012             Decided:   October 22, 2012


Before SHEDD, DUNCAN, and DIAZ, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Joel C. Hoppe,
Assistant Federal Public Defender, Charlottesville, Virginia,
for Appellant.     Timothy J. Heaphy, United States Attorney,
Jean B.   Hudson,  Assistant   United   States  Attorney,  Robert
Abendroth,    Special    Assistant    United   States   Attorney,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Calvin Edward Miller pled guilty to distribution of a

quantity    of    powder    cocaine,     21     U.S.C.A.       § 841(a),    (b)(1)(C)

(West 1999 & Supp. 2012), and was sentenced to a term of eighty-

four   months’      imprisonment.             Miller    appeals       his   sentence,

contending       that     the    district       court       committed       reversible

procedural       error    when   it    determined       that     he   was    a   career

offender,    U.S.       Sentencing    Guidelines        Manual     § 4B1.1       (2011),

although    the    court    departed    downward       in    sentencing     him.     We

affirm.

             Miller committed the instant offense in November 2010.

He had two prior felony convictions for cocaine distribution.

He contended at sentencing that his 1997 conviction, incurred

when he was seventeen, should not be treated as a predicate

conviction for career offender status because his sentence was

outside the applicable time period and could not be counted in

his criminal history.            For prior offenses committed before age

eighteen, if the sentence exceeded one year and one month, three

criminal history points apply if the sentence was imposed or if

any part of it, including imprisonment for probation violations,

was served within the fifteen-year period before the instant

offense.      USSG § 4A1.2(d)(1), (e)(1).                   For the 1997 offense,

Miller was sentenced in 1999 to a ten-year term of imprisonment,

suspended, and four years’ probation.                  He subsequently violated

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probation in 2000 and served one year in prison.                          His probation

was revoked again in 2002 and 2004 and in each case, after a

period of detention before the revocation hearing, Miller was

sentenced to time served.

            The    district     court        determined     that    Miller    had      been

imprisoned for at least one year and one month for the 1997

offense, making him a career offender.                    The court then decided

that career offender status overstated Miller’s criminal record,

see USSG § 4A1.3, p.s., and that a sentence within the career

offender        Guidelines      range        of   188-235        months      would      be

unreasonable.         The court also decided that a sentence within the

Guidelines range that would apply if Miller were not a career

offender would understate his criminal record and be similarly

unreasonable.         The court determined, in light of the sentencing

factors    in    18    U.S.C.   § 3553(a)         (2006),    that    a     sentence     of

eighty-four months was appropriate.

            We review a sentence for reasonableness under an abuse

of discretion standard, Gall v. United States, 552 U.S. 38, 51

(2007), which requires consideration of both the procedural and

substantive       reasonableness        of    a   sentence.        Id.;     see    United

States     v.    Lynn,    592   F.3d     572,      575    (4th     Cir.    2010).        A

“deferential          abuse-of-discretion          standard        applies        to   any

sentence, whether inside, just outside, or significantly outside

the Guidelines range.”            United States v. Rivera-Santana, 668

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F.3d 95, 100-01 (4th Cir. 2012) (internal citation and quotation

marks omitted), cert. denied, 2012 Westlaw 2805025 (U.S. Oct. 1,

2012).     In reviewing any variance, we must give due deference to

the sentencing court’s decision.                           United States v. Diosdado-

Star, 630 F.3d 359, 366 (4th Cir.) (citing Gall, 552 U.S. at

56), cert. denied, 131 S. Ct. 2946 (2011).                                    Procedural errors

are    subject       to    review       for   harmlessness.               Puckett         v.   United

States, 556 U.S. 129, 141 (2009); United States v. Mehta, 594

F.3d 279, 283 (4th Cir. (2010).

               Miller maintains that the government failed to prove

that he served more than one month in prison as a penalty for

his probation violations in 2002 or 2004, as opposed to time in

prison    “dictated         by     other      charges        and     the       circuit         court’s

scheduling constraints” which, he argues, should not be counted

for criminal history or career offender status.                                     Miller relies

on    United    States       v.    Latimer,      991       F.2d     1509,       1517      (9th     Cir.

1993), and United States v. Stewart, 49 F.3d 121, 125 (4th Cir.

1995).         Both       cases    are     distinguishable.                   In    Latimer,       the

defendant’s       parole          was    revoked,          but     he     was       sentenced       to

confinement          in     a     community          treatment          center       instead         of

imprisonment.             Thus,    the    time       he    spent    in        federal      detention

awaiting       his    parole        revocation            hearing       did        not     count    as

incarceration.            Latimer, 991 F.2d at 1510, 1517.                               In Stewart,

the    defendant’s         parole       was   not         revoked       and    he    received       no

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sentence      at    all.      As    in    Latimer,    the    defendant’s       detention

before his revocation hearing did not constitute a sentence of

imprisonment.         Stewart, 49 F.3d at 125.               By contrast, Miller’s

probation was revoked in 2002 and in 2004, and each time he

received   a       sentence   of    time     served.        Based   on   the    evidence

presented at sentencing, the district court did not clearly err

in finding that Miller served at least one month of imprisonment

following revocation of his probation in 2002 and 2004, and a

total sentence of imprisonment of at least one year and one

month   for    his    1997    drug       conviction.        Therefore,    Miller    was

correctly sentenced as a career offender.

              Further,        any        error   in     the     district         court’s

determination was harmless because the court decided that the

appropriate sentence for Miller’s offense was within neither the

career offender Guidelines range nor the Guidelines range that

would apply if Miller were not a career offender.                        In his reply

brief, Miller argues that resentencing is necessary because the

district court stated only that it would impose “about” the same

sentence, not precisely the same sentence, whether or not he was

a career offender.            Miller cites United States v. Lewis, 606

F.3d 193, 199 (4th Cir. 2010) (rejecting government argument for

application of an upwardly amended Guidelines provision on the

ground that to do so would violate the Ex Post Facto Clause).

Lewis is inapposite.           We are satisfied that resentencing is not

                                             5
required here because the district court correctly determined

that Miller was a career offender and exercised its discretion

to determine the appropriate sentence in light of the § 3553(a)

factors.

           We therefore affirm the district court’s judgment.       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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