UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4837
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WYNN ROBERT WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Winston-Salem. Frank W. Bullock,
Jr., District Judge. (CR-94-126)
Argued: December 3, 2004 Decided: January 4, 2005
Before MOTZ, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Brian Michael Aus, Durham, North Carolina, for Appellant.
Sandra Jane Hairston, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for
Appellee. ON BRIEF: Anna Mills Wagoner, United States Attorney,
Angela H. Miller, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wynn Robert Walker appeals the district court’s imposition of
a 21-month prison sentence following the revocation of his
supervised release. We affirm.
In 1994, Walker was convicted of bank robbery in violation of
18 U.S.C. § 2113(a) and was sentenced to 105 months of imprisonment
to be followed by three years of supervised release. In 2003, the
district court revoked Walker’s supervised release based on his
admitted drug use. Because Walker’s 1994 conviction is a Class C
felony, see 18 U.S.C. § 3559(a)(3), he was subject to a potential
maximum term of imprisonment of 24 months for the supervised
release violation. See 18 U.S.C. § 3583(e)(3). The probation
officer noted this fact in Walker’s violation report, and he also
noted that under the applicable Policy Statement -- U.S.S.G. §
7B1.4 -- the guideline range for Walker’s violation was 21 to 24
months because it is a Grade B violation.* Without objection, the
district court sentenced Walker to a term of 21 months of
imprisonment.
On appeal, Walker argues that his supervised release violation
is a Grade C violation under § 7B1.4 and that his sentencing range
*
Because Walker’s original criminal history category was
Category VI, the range set forth for his Grade B violation in §
7B1.4(a) is 21-27 months. However, pursuant to § 7B1.4(b)(3)(A),
the applicable range became 21-24 months because the sentence
cannot be greater than the maximum term of imprisonment authorized
by statute.
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therefore should have been 8-14 months. Because he did not present
this argument in the district court, we review for plain error.
Under the plain error standard, Walker must show that (1) an error
occurred, (2) the error was plain, and (3) the error affected his
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). Even when these conditions are satisfied, we may exercise
our discretion to notice the error only if it “seriously affect[s]
the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
As a Chapter 7 Policy Statement, § 7B1.4 is a “non-binding
advisory” guide. United States v. Davis, 53 F.3d 638, 642 (4th
Cir. 1995). Regardless of whether Walker’s violation is classified
under § 7B1.4 as a Grade B violation or a Grade C violation, the
district court was authorized under § 3583(e)(3) to sentence him to
a term of imprisonment not to exceed 24 months. Under these
circumstances, we conclude that Walker has failed to establish that
the district court plainly erred (if it erred at all) in sentencing
him to a term of imprisonment of 21 months.
Accordingly, we affirm the judgment of the district court.
AFFIRMED
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