            Case: 16-11095   Date Filed: 01/18/2017   Page: 1 of 5


                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                        Nos. 16-11095 ; 16-11097
                         Non-Argument Calendar
                       ________________________

       D.C. Docket Nos. 1:98-cr-00040-MP-GRJ-1; 1:99-cr-00038-MP-1



UNITED STATES OF AMERICA,

                                                                Plaintiff-Appellee,


                                   versus

JOHN WHITEHURST,

                                                          Defendant-Appellant.

                       ________________________

                Appeals from the United States District Court
                    for the Northern District of Florida
                       ________________________

                             (January 18, 2017)

Before TJOFLAT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
               Case: 16-11095      Date Filed: 01/18/2017    Page: 2 of 5


      John Whitehurst appeals his 60-month sentence imposed by the district court

after revocation of his supervised release resulting from a prior armed bank

robbery conviction. On appeal, Whitehurst argues that the district court plainly

erred by finding that home-invasion robbery in Florida is a “crime of violence”

under U.S.S.G. § 7B1.1(a)(1)(A)(i). Whitehurst does not contest that he

committed conduct equivalent to a home-invasion robbery. In Florida, home-

invasion robbery is punishable by a maximum sentence exceeding 20 years’

imprisonment. After review of the record, the parties’ briefs, and the applicable

law, we find that the district court did not plainly err by finding that Whitehurst

committed a Grade A violation.

      We review de novo the legality of a sentence imposed pursuant to revocation

of a supervised-release term. United States v. Mazarky, 499 F.3d 1246, 1248 (11th

Cir. 2007). However, if a defendant fails to object to an issue at sentencing, this

Court reviews it for only plain error. United States v. Vandergrift, 754 F.3d 1303,

1307 (11th Cir. 2014). To establish plain error, a defendant must show: “(1) error,

(2) that is plain and (3) that affects substantial rights. If all three conditions are

met, an appellate court may then exercise its discretion to notice a forfeited error,

but only if (4) the error seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.

2007) (quotation and citation omitted). Error is plain if it is clear or obvious under


                                            2
              Case: 16-11095     Date Filed: 01/18/2017   Page: 3 of 5


existing law. United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777,

123 L. Ed. 2d 508 (1993). Lastly, we may affirm for any reason supported by the

record. United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012).

      A district court may revoke a defendant’s supervised-release term and

require the defendant to serve an imprisonment term if it finds, by a preponderance

of evidence, that he violated a condition of his supervised release. 18 U.S.C.

§ 3583(e)(3). “For sentences imposed upon revocation of supervised release, the

recommended sentencing range is based on the classification of the conduct that

resulted in the revocation and the criminal history category applicable at the time”

of the defendant’s original sentencing. United States v. Campbell, 473 F.3d 1345,

1348-49 (11th Cir. 2007) (citing U.S.S.G. §§ 7B1.1, 7B1.4). A “Grade A”

violation occurs where the violation includes (A) conduct consisting of a federal,

state, or local offense punishable by more than one year in prison that is a “crime

of violence” or (B) “any other federal, state, or local offense punishable by a term

of imprisonment exceeding” 20 years. U.S.S.G. § 7B1.1(a)(1). Importantly, “[t]he

grade of violation does not depend upon the conduct that is the subject of criminal

charges or 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.” U.S.S.G.

§ 7B1.1. comment n.1.




                                          3
               Case: 16-11095      Date Filed: 01/18/2017    Page: 4 of 5


      A “home-invasion robbery” is “any robbery that occurs when the offender

enters a dwelling with the intent to commit a robbery, and does commit a robbery

of the occupants therein.” Fla. Stat. § 812.135(1). If the offender carries a firearm

or other deadly weapon during the home-invasion robbery, the offense is a felony

punishable by a maximum of life imprisonment. Id. § 812.135(2)(a).

      Distinct from determining sentencing enhancements under the Armed Career

Criminal Act, 18 U.S.C. § 924(e), or the career offender guideline, when grading a

violation under Chapter 7 of the Sentencing Guidelines, a district court considers

the conduct, rather than the conviction. U.S.S.G. § 7B1.1 comment n.1. Here, it is

undisputed that Whitehurst committed conduct consistent with a home-invasion

robbery. A home-invasion robbery is punishable by life imprisonment. Fla. Stat. §

812.135(2)(a). Accordingly, the district court did not plainly err by finding that

Whitehurst committed a Grade A violation of his supervised release.

      Lastly, Whitehurst’s argument that this Court may not affirm on the basis of

U.S.S.G. § 7B1.1(a)(1)(B) because he was not on notice that the district court

could make a finding on that alternative ground is unpersuasive. Section

7B1.1(a)(1)(B)’s presence in the Sentencing Guidelines undercuts his argument.

Whitehurst’s counsel’s failure to discover and address this provision does not

deprive this Court of its ability to affirm the district court’s findings for any

reasons supported by the record.


                                            4
     Case: 16-11095   Date Filed: 01/18/2017   Page: 5 of 5


AFFIRMED.




                              5
