UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4879

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

THELBERT GRAINGER, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Wilmington. James C. Fox, Senior 

District Judge. (7:02-cr-00037-F-1)

Submitted: January 27, 2011 Decided: February 17, 2011

Before GREGORY and WYNN, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, 

Assistant Federal Public Defender, Raleigh, North Carolina, for 

Appellant. George E. B. Holding, United States Attorney, Anne 

M. Hayes, Jennifer P. May-Parker, Assistant United States 

Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Thelbert Grainger, Jr., appeals the district court’s 

judgment revoking supervised release and imposing a twenty-four 

month sentence. We affirm.

Grainger pled guilty to one count of false statement 

to a firearms dealer during acquisition of a firearm in 

violation of 18 U.S.C. § 922(a)(6) (2000) in 2002. He was 

sentenced to 87 months’ imprisonment to be followed by 36 

months’ supervised release. His term of supervision commenced 

on January 13, 2009. His short tenure of supervised release was 

characterized by significant violations, including testing 

positive for marijuana, failing to pay court-imposed fines, and 

absconding from supervision. The Probation Office ultimately 

petitioned the district court for revocation. After a hearing, 

the court found that Grainger had six supervised release 

violations and imposed a twenty-four month sentence. His 

advisory Guidelines range was seven to thirteen months. On 

appeal, Grainger argues that the twenty-four month sentence 

imposed by the district court was plainly unreasonable. We do 

not agree. 

This court reviews the district court’s revocation of 

supervised release for an abuse of discretion. United States v. 

Pregent, 190 F.3d 279, 282 (4th Cir. 1999). A sentence imposed 

after revocation of supervised release should be affirmed if it 
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is within the applicable statutory maximum and is not plainly 

unreasonable. United States v. Crudup, 461 F.3d 433, 437, 439-

40 (4th Cir. 2006). This court first reviews the sentence for 

reasonableness, “follow[ing] generally the procedural and 

substantive considerations that [are] employ[ed] in [the] review 

of original sentences, . . . with some necessary modifications 

to take into account the unique nature of supervised release 

revocation sentences.” Id. at 438-39; see United States v. 

Finley, 531 F.3d 288, 294 (4th Cir. 2008) (“In applying the 

‘plainly unreasonable’ standard, we first determine, using the 

instructions given in Gall [v. United States, 552 U.S. 38 

(2007)], whether a sentence is ‘unreasonable.’”).

Although the district court must consider the Chapter 

7 policy statements and the requirements of § 3553(a) and 

§ 3583, “the sentencing court retains broad discretion to revoke 

a defendant’s probation [or supervised release] and impose a 

term of imprisonment up to the statutory maximum.” United 

States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (citing 

Crudup, 461 F.3d at 439). In this case, the statutory maximum 

revocation sentence was two years’ imprisonment.

A sentence is reviewed for reasonableness under an 

abuse of discretion standard. Gall, 552 U.S. at 51. This 

review requires consideration of both the procedural and 

substantive reasonableness of a sentence. Id.; see United 
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States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). After 

determining whether the district court properly calculated the 

defendant’s advisory Guideline range, this court must decide 

whether the district court considered the § 3553(a) factors, 

analyzed the arguments presented by the parties, and 

sufficiently explained the selected sentence. Lynn, 592 F.3d at 

575-76; see United States v. Carter, 564 F.3d 325, 330 (4th Cir. 

2009). Properly preserved claims of procedural error are 

subject to harmless error review. Lynn, 592 F.3d at 576. If 

the sentence is free of significant procedural error, the 

appellate court reviews the substantive reasonableness of the 

sentence. Id. at 575; United States v. Pauley, 511 F.3d 468, 

473 (4th Cir. 2007).

Grainger neither objected to his sentence, nor did he 

request a sentence different in duration or manner from that 

which he received. Accordingly, our initial reasonableness 

review is for plain error. Lynn, 592 F.3d at 577. To establish 

plain error, “[Grainger] must show that an error occurred, that 

the error was plain, and that the error affected his substantial 

rights.” United States v. Muhammad, 478 F.3d 247, 249 

(4th Cir. 2007). Even if Grainger satisfies these requirements, 

“correction of the error remains within [the court’s] 

discretion, which [the court] should not exercise . . . unless 

the error seriously affect[s] the fairness, integrity or public 
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reputation of judicial proceedings.” Id. (internal quotation 

marks and citation omitted).

With regard to Grainger’s claim that the court did not 

provide an adequate explanation of his sentence and should have 

further considered the Chapter 7 policy statements and the 

§ 3553(a) factors, we have reviewed the record and we do not 

agree. The district court clearly discussed Grainger’s lengthy 

criminal history, the seriousness of his violations, and the 

need for Grainger to receive substance abuse treatment. We 

conclude that the court did not err, let alone plainly so. 

Consequently, we need not decide whether the sentence was 

plainly procedurally unreasonable within the meaning of Crudup. 

Grainger also challenges the substantive 

reasonableness of his sentence. We again note the broad 

discretion afforded to district courts in imposing a sentence 

within the statutory maximum on violations of supervised 

release. In light of this discretion, and after review of the 

record, we conclude that the sentence imposed was substantively 

reasonable. Again, we need not reach the issue of whether it 

was plainly unreasonable.

Accordingly, we affirm the judgment of the district 

court. We dispense with oral argument because the facts and 

legal contentions are adequately presented in the materials 
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before the court and argument would not aid the decisional 

process.

AFFIRMED