1 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-3181

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Gary John Cates, *
* Appellant. *

___________ Submitted: May 10, 2010 Filed: July 30, 2010

___________ Before RILEY, Chief Judge, JOHN R. GIBSON and MURPHY, Circuit Judges.

___________ RILEY, Chief Judge.

While on supervised release for drug and firearms charges, Gary John Cates tested positive on three separate occasions for marijuana use. The district court 1 revoked Cates’s supervised release and sent enced him to 11 months imprisonment and 3 years supervised release. Cates appeal s his revocation sentence, and we affirm.2 Cates’s urine sample was sent to a laboratory for further testing. The laboratory reported Cates tested negativ e for marijuana. The probation officer suggested the discrepancy was due to th e laboratory reporting negative results when the level of marijuana fell below fifteen nanograms per milliliter, and the probation office uses a lower cutoff level.
-2- I. BACKGROUND In August 1997, Cates pled guilty to (1) being a felon in possession of a firearm, (2) possession of a sawed-off shot gun, (3) distribution of methamphetamine, and (4) conspiracy to distribute methamphetamine. Cates was sentenced to concurrent terms of 144 months and 120 months impris onment followed by 4 years of supervised release. Cates began serving his term of s upervised release in January 2008. In April, May, and June 2009, Cates tested positive for marijuan a use. In July 2009, Cates’s probation officer filed a petiti on to revoke Cates’s supervised release, and Cates was summoned to appear before the district court. On the morning of the revocation hearing, Cates tested presum ptively positive for marijuana, 2causing the district court to continue the hearing to September 2009.

A week before the second hearing, and on the day of the hearing, Cates again tested presumptively positive for marijuana. At the hearing, Cates admitted he used marijuana twice in early Ap ril 2009. Cates, who has can cer, testified his oncologist told him “they were using marijuana, expe rimenting with marijuana” to alleviate the pain associated with cancer. Cates mentioned this to a friend who came to visit in April 2009, and the friend happened to ha ve marijuana in his possession. Cates contends he smoked the marijuana with his friend, and again the next day with his friend’s son, to alleviate his cancer-related pain. Cates denied he “deliberately” or “knowingly” used marijuana after April 2009. Cates testified he smoked a pipe every morning as part of a Native American religi ous ritual. Cates claimed he had borrowed a pipe from his son in March, and later learned his son’s roommates had used the pipe to smoke marijuana. Cates suggested this may explain why he was testing positive for marijuana. Cates reported he had not used the pipe in over a month.-3- The district court did not believe Cates ’s explanation for the positive marijuana tests and determined Cates possessed th e marijuana which constituted a grade A violation of supervised release. Because Cates was on supervised release for a class A felony and had a criminal history category of VI, the district court calculated Cates’s advisory United States Sentencing Guidelines (Guidelines or U.S.S.G.) range as 51 to 63 months imprisonment. See U.S.S.G. § 7B1.4(a)(2). After considering all of the 18 U.S.C. § 3553(a) sentencing factors, the district court sentenced Cates to 11 months imprisonment and 3 years supervised release. The government queried whether the district court would impose the same sentence if Cates’s possession of marijuana were a grade C viola tion. The district court d eclared, “[E]ven if it were a grade C as opposed to a grade A, my sent ence would have been the same after considering [the § 3553(a) factors].”

Cates appeals his revocation sentence, arguing the district court erred in (1) discrediting Cates’s explanation for th e positive marijuana tests, (2) improperly weighing the 18 U.S.C. § 3553(a) factors, (3) inadequately explaining Cates’s sentence, and (4) imposing an unreasonable sentence.

II. DISCUSSION “We review a district court’s revoca tion sentencing decisions using the same standards that we apply to initial sentencing decisions,” that is, abuse of discretion. United States v. Miller , 557 F.3d 910, 915-16 (8th Cir. 2009) (citing United States v. Cotton , 399 F.3d 913, 916 (8th Cir. 2005).

In reviewing for abuse of discretion, we must first ensure that the court committed no significant procedural error, such as improperly calculating the sentence under the Guidelines, failing to consider relevant 18 U.S.C. § 3553(a) sentencing factor s, imposing a sentence based on clearly erroneous facts, or failing to adequately explain the reasons for the sentence imposed.

Id. (citing Gall v. United States , 552 U.S. 38, 51 (2007).-4- A. Credibility Determination Cates first contends the district court erred in disbelieving Cates’s explanation for the positive marijuana tests. Cates suggests the district court’s credibility determination was based on sp eculation and factual error. The district court found Cates’s explanation was “unpe rsuasive and just an excuse” because Cates had used marijuana on and off for several years “and hewould certainly be able to feel the effects of marijuana if he smoked.” The district court also expressed doubt Cates would not have tested positive for marijuana until April if he started using the allegedly marijuana tainted pipe in March. The district court declared, “That makes no sense. I don’t believe it.”

“Witness credibility is quintessen tially a judgment call and virtually unassailable on appeal.” United States v. Bolden , 596 F.3d 976, 982 (8th Cir. 2010) (internal quotation marks omitted). “Our review, then, is not to determine what conclusion we might reach in the case were we to sit as the finders of fact, but to determine whether the district court’s factual findings amount to clear error.” United States v. Jones , 539 F.3d 895, 897 (8th Cir. 2008). We conclude the district court had valid and sufficient reasons to disbelie ve Cates’s explanation for the positive marijuana tests, and, therefore, did not clearly err in finding Cates possessed marijuana.

B. Procedural Error Before we address Cates’s substantive r easonableness argument, we must first address the district court’s Guidelines cal culations. Cates asserts, and the government concedes, the district court procedurally erred in finding Cates’s possession of marijuana was a grade A violation of supervised release. Under U.S.S.G. § 7B1.1(a)(1), controlled substance offens es punishable by more than one year of imprisonment are grade A violations, but under § 4B1.2(b), mere possession of a controlled substance does not constitute a controlled substance offense. See U.S.S.G.-5- § 4B1.2(b); see also U.S.S.G. § 7B1.1 cmt. n.3 (refe rring to § 4B1.2(b)’s definition of a controlled substance offense). Cates had prior drug convictions, making his April 2009 drug possession offense a felony and a grad e B violation of supervised release. See 21 U.S.C. § 844(a); U.S.S.G. § 7B1.1(a)(2). Thus, the district court procedurally erred in finding it was a grade A violation. However, because the district court declared it would impose the same sentence even if Cates’s possession of marijuana were not a grade A violation, the district court’s procedural erro r was harmless. See United States v. Shuler , 598 F.3d 444, 447 (8th Cir. 2010) (finding a district court’s procedural error in imposing an upward departure was harmless where the district court explicitly stated it woul d have imposed the same sentence regardless of whether the district court had imposed the upward departure).

Cates also contends the district c ourt procedurally erred by improperly weighing the 18 U.S.C. § 3553(a) factors and inadequately explaining the basis of its
sentence. Because Cates did not raise these objections in the district court, we review for plain error. See Miller , 557 F.3d at 916. “To establis h plain error, [Cates] must prove that (1) there was error, (2) the erro r was plain, and (3) the error affected his substantial rights.” Id. “We will exercise our discretion to correct such an error only if the error ‘seriously affect [s] the fairness, integrity, or public reputation of judicial proceedings.’” Id. (quoting United States v. Olano , 507 U.S. 725, 732 (1993)). We find no plain error in the district court’s e xplanation or weighing of the factors. See United States v. Feemster , 572 F.3d 455, 461 (8th Cir. 2009) (en banc) (“‘[W]e do not require a district court to provide a mech anical recitation of the § 3553(a) factors when determining a sentence. Rather, it simp ly must be clear from the record that the district court actually considered the § 3553( a) factors in determining the sentence.’” (quoting United States v. Walking Eagle , 553 F.3d 654, 659 (8th Cir. 2009))); see also Rita v. United States , 551 U.S. 338, 358-59 (2007).

C. Substantive Reasonableness Finally, Cates contends the district c ourt imposed a substantively unreasonable sentence. Cates had prior drug convic tions, making his April 2009 drug possession-6- offense a felony. See 21 U.S.C. § 844(a). Therefore, Cates committed a grade B violation, and his advisory Guidelines range was 21 to 27 months imprisonment. See U.S.S.G. §§ 7B1.1(a)(2) and 7B1.4(a). “[G] iv[ing] due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify” Cates’s sentence, Gall , 552 at 51, our careful review of the reco rd and Cates’s sentence reveals no abuse of the district court’s considerable senten cing discretion and no basis for concluding Cates’s below-Guidelines sentence is substantively unreasonable.

III. CONCLUSION We affirm the district court’s judgment.

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