                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 10-4724


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

FRANCISCO ANDRE THOMAS,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.    Patrick Michael Duffy, Senior
District Judge. (2:99-cr-00460-PMD-4)


Submitted:   March 28, 2011                 Decided:   April 22, 2011


Before KING, AGEE, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary   Gordon   Baker,  Assistant   Federal  Public  Defender,
Charleston, South Carolina, for Appellant.  Matthew J. Modica,
Assistant United States Attorney, Charleston, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           Francisco      Andre   Thomas    appeals    the    district   court’s

judgment revoking his supervised release and sentencing him to

thirty months     of    imprisonment.       Thomas’     counsel    has   filed    a

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

stating that there are no meritorious issues for appeal, but

questioning whether the district court abused its discretion in

classifying     new    criminal   conduct   as    a   Grade   A   violation   and

whether Thomas’ sentence was unreasonable.               Although advised of

his right to file a supplemental pro se brief, Thomas has not

done so.

           In    January    2010,   Thomas’      probation    officer    filed    a

petition alleging two violations of supervised release:                       (1)

failure to refrain from use of controlled substances, based on

three positive tests for marijuana (a Grade C violation), and

(2) a state conviction for conspiracy to possess cocaine.                        At

the revocation hearing, Thomas argued that although he had been

charged in the state court with trafficking cocaine, he pled

guilty to drug conspiracy to possess cocaine and therefore, the

conviction should count as a Grade B — and not a Grade A —

violation.      The district court disagreed, concluding that the

state conviction should be counted as a Grade A violation, based

on the totality of the circumstances surrounding Thomas’ arrest.

With a criminal history category of I, the advisory guidelines

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range was twenty-four to thirty-four months; the court imposed a

thirty-month    term    of    imprisonment.          Thomas   noted    a    timely

appeal.

           We    review      a     district    court’s    judgment         revoking

supervised release and imposing a term of imprisonment for abuse

of discretion.    United States v. Pregent, 190 F.3d 279, 282 (4th

Cir. 1999).     To revoke supervised release, a district court need

only find a violation of a condition of supervised release by a

preponderance of the evidence.              18 U.S.C. § 3583(e)(3) (2006).

This burden “simply requires the trier of fact to believe that

the existence of a fact is more probable than its nonexistence.”

United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010)

(internal quotation marks omitted).            Appellate courts review the

district   court’s     factual      findings   for    clear   error.        United

States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003); United

States v. Whalen, 82 F.3d 528, 532 (1st Cir. 1996).                    There is

clear error if the court, after reviewing the record, is left

with “a definite and firm conviction that a mistake has been

committed.”     Anderson v. City of Bessemer City, N.C., 470 U.S.

564, 573 (1985) (internal quotation marks and citation omitted).

It is not enough for the court to conclude it would have decided

the case differently.        Id.

           Thomas claims first that the district court committed

clear error in concluding that his new criminal conduct was a

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Grade A violation.         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, that are

punishable by more than a year in prison.                      USSG §§ 4B1.2(b),

7B1.1 cmt. (n.3).      Any other offense punishable by more than a

year in prison is a Grade B violation.                 USSG § 7B.1(a)(2).                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); see United States v. Jolibois, 294 F.3d 1110, 1114

(9th Cir. 2002) (violation of terms of supervised release is

determined based on defendant’s conduct and may be found whether

defendant was ever convicted of any particular offense).                                  We

find no error in the district court’s conclusion that Thomas’

conduct warranted an inference that he intended to distribute

the drugs at issue in his state court proceedings; accordingly,



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the district court did not clearly err in concluding that his

conviction constituted a Grade A violation.

            Next, counsel questions the reasonableness of Thomas’

sentence.       A sentence imposed after revocation of supervised

release    should      be   affirmed          if    it    is    within      the     applicable

statutory    maximum        and    is    not       plainly      unreasonable.          United

States v. Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006).                                      In

making this determination, this court first considers whether

the   sentence         imposed          is     procedurally            or        substantively

unreasonable.         Id. at 438.            “This 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, 656 (4th

Cir. 2007) (internal quotation marks omitted).

            A    sentence         imposed      upon       revocation        of    release   is

procedurally     reasonable         if       the   district       court     considered      the

Chapter Seven policy statements and the applicable 18 U.S.C.

§ 3553(a) (2006) factors, see 18 U.S.C. § 3583(e); Crudup, 461

F.3d at 438-40, and adequately explained the sentence imposed,

United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).                                 A

sentence    imposed      upon      revocation        of    release       is      substantively

reasonable      if    the   district         court       stated    a   proper       basis   for

concluding      that     the      defendant         should       receive      the     sentence

imposed, within the statutory maximum.                         Crudup, 461 F.3d at 440.

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This court will affirm if the sentence is not unreasonable.                                    Id.

at    439.          Only   if      a    sentence           is    found      procedurally         or

substantively unreasonable will the court “decide whether the

sentence is plainly unreasonable.”                     Id.       “[T]he court ultimately

has broad discretion to revoke its previous sentence and impose

a    term    of    imprisonment        up   to       the    statutory         maximum.”         Id.

(internal quotation marks omitted).

              Here, we have reviewed the record and conclude that

the district court did not impose an unreasonable sentence, let

alone one that is plainly so.                  Thomas received a sentence within

the Guidelines range for his offense, and the court offered an

adequate      explanation         to   preserve        the      sentence      upon    appellate

review.           The   district       court     initially         considered        an   upward

departure based on Thomas’ repeated violations of the conditions

of his supervised release; however, the court ultimately decided

to impose a sentence within the guidelines range because Thomas

had an eighteen-month state sentence to serve in addition to his

federal      sentence.          Accordingly,           we       find    the    sentence        both

procedurally and substantively reasonable.

              Therefore, we affirm Thomas’ sentence.                            In accordance

with Anders, we have reviewed the entire record for meritorious

issues and have found none.                    We therefore affirm.                  This court

requires      that      counsel    inform      her     client,         in   writing,      of   his

right to petition the Supreme Court of the United States for

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further   review.     If    the   client   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 was served on the client.           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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