                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4505


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

KENNETH WAYNE TOLBERT,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:04-cr-00059-LHT-DLH-1)


Submitted:   March 16, 2010                 Decided:   April 12, 2010


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Claire J. Rauscher, Executive Director, Ann L. Hester, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Steven Slawinski,
Assistant Federal Defender, Erin K. Taylor, Research and Writing
Attorney, Charlotte, North Carolina, for Appellant. Edward R.
Ryan, United States Attorney, Charlotte, North Carolina; Amy E.
Ray,   Assistant  United   States  Attorney,   Asheville,  North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Kenneth         Wayne     Tolbert    appeals    the     district     court’s

judgment revoking his supervised release and sentencing him to

eighteen months’ imprisonment.                  On appeal, Tolbert alleges that

the district court erred in allowing him to proceed pro se and

that his sentence is plainly unreasonable.                        For the following

reasons,    we    affirm       the    district     court’s    decision      to    revoke

Tolbert’s supervised release, but vacate Tolbert’s sentence and

remand for a new sentencing hearing.

            “A    defendant’s         supervised    release       cannot   be    revoked

without    a     full       hearing    unless    the   defendant      knowingly         and

voluntarily admits to the allegations against [him] and waives

[his] rights under Rule 32.1 of the Federal Rules of Criminal

Procedure.”       United States v. Farrell, 393 F.3d 498, 500 (4th

Cir. 2005).         The right to counsel at a revocation hearing is

established       by    Rule     32.1(b)(2)(D).            Waiver    of    the    rights

provided in Rule 32.1 must be knowing and voluntary, as assessed

under the totality of the circumstances.                     Id.; see also United

States v. Hodges, 460 F.3d 646, 651 (5th Cir. 2006) (holding

that   a   waiver      of    counsel    in   revocation      proceedings        “must    be

knowing and voluntary as demonstrated either through a colloquy

with the district court, or by the totality of circumstances, or

both.”).       After a thorough review of the record, we find that

the totality of the circumstances indicate that Tolbert’s waiver

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of his right to counsel and his decision to proceed pro se were

knowing and voluntary.             Id.

            We find merit, however, in Tolbert’s challenge to his

sentence.       This     court      will    affirm      a   sentence   imposed     after

revocation of supervised release if it is within the prescribed

statutory range and not plainly unreasonable.                       United States v.

Crudup, 461 F.3d 433, 439-40 (4th Cir. 2006).                          When reviewing

whether a revocation sentence is plainly unreasonable, we must

first look to whether it is unreasonable.                          United States v.

Moulden, 478 F.3d 652, 656 (4th Cir. 2007); Crudup, 461 F.3d at

438.

            A     supervised             release       revocation       sentence      is

procedurally     reasonable         if     the    district    court    considered    the

Chapter Seven advisory policy statement range and the 18 U.S.C.

§   3553(a)     (2006)       factors       applicable       to   supervised    release

revocation.     See 18 U.S.C. § 3583(e) (2006); Crudup, 461 F.3d at

439.     Because the district court here did not state that it

considered the Guidelines’ policy statements, and did not even

discuss,    calculate,        or    adopt        the   probation   officer’s     actual

advisory Guidelines range, we find that Tolbert’s sentence is

procedurally unreasonable.

            Having found the sentence unreasonable, we must next

assess   whether       the    sentence       is    “plainly      unreasonable.”       To

decide whether a sentence is plainly unreasonable, we look to

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the    definition      of    “plain”    as        used    in    plain-error         analysis.

Crudup, 461 F.3d at 439.               A plainly unreasonable sentence runs

afoul of clearly established law.                   See United States v. Hughes,

401 F.3d 540, 547 (4th Cir. 2005).

              Because       Tolbert    did        not     preserve     this    claim      for

appellate review, we review for plain error.                           Fed. R. Crim. P.

52(b); United States v. Branch, 537 F.3d 328, 343 (4th Cir.

2008), cert. denied, 129 S. Ct. 943 (2009).                           To receive relief

under   the    plain    error     standard         of    review,     Tolbert    must    show

(1) there was error; (2) the error was plain; and (3) the error

affected his substantial rights.                    United States v. Olano, 507

U.S.    725,    732     (1993).        As     stated        above,     we     recognize     a

sentencing error and find it to be plainly unreasonable because

it runs afoul of clearly established law.                         See Crudup, 461 F.3d

at 439.     Because the sentence imposed by the district court was

double the maximum of the advisory Guideline range as calculated

by    the   probation       officer,     we       find     that      the    error    affects

Tolbert’s substantial rights.                     And we choose to exercise our

“remedial      discretion,”       Olano,      507        U.S.   at    736,    because     the

district court’s failure to calculate and consider the Chapter

Seven advisory sentencing range affected the fairness of the

proceeding.

              Accordingly, although we affirm the district court’s

decision revoking Tolbert’s supervised release, we vacate his

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sentence    for    a    procedural         sentencing   error       and    remand    for

resentencing.      By this disposition, we indicate no view as to

the appropriate sentence to be imposed by the district court on

remand.     We emphasize in this regard that we have not evaluated

the substantive reasonableness of the sentence imposed by the

district    court;      we    have       concluded   only    that    the    sentencing

procedure    followed        by    the    district   court   was    in     error.      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 IN PART,
                                                                 VACATED IN PART,
                                                                     AND REMANDED




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