UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4842

TODD MCSWINE,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

Samuel G. Wilson, Chief District Judge.

(CR-93-70136)

Submitted: June 12, 1997

Decided: June 24, 1997

Before WIDENER and WILLIAMS, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Edward H. Childress, Charlottesville, Virginia, for Appellant. Robert

P. Crouch, Jr., United States Attorney, Ray B. Fitzgerald, Jr., Assistant United States Attorney, Charlottesville, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Todd McSwine appeals from his conviction for violation of the

conditions of his supervised release. McSwine originally was sentenced in Virginia to thirty-months incarceration followed by thirtysix months of supervised release for his wire fraud conviction. His

supervised release began in the Northern District of Illinois.

Shortly thereafter, McSwine's probation officer in the Northern

District of Illinois reported that McSwine submitted four urine

screens that tested positive for cocaine use. McSwine initially denied

illegal drug use, but ultimately admitted that he had used cocaine.

After McSwine's acknowledgment of drug use, McSwine's probation

officer placed him in an outpatient substance abuse treatment program. According to the officer, McSwine missed his first meeting.

At McSwine's revocation hearing in Virginia, a probation officer

from the Western District of Virginia testified to McSwine's positive

urine screens based on his contacts with McSwine's probation officer

from the Northern District of Illinois. McSwine was sentenced to

eighteen months incarceration for violating the conditions of his

supervised release.

On appeal, McSwine claims that the evidence was insufficient to

support his conviction. The district court had only to find by a preponderance of the evidence that McSwine violated a condition of his

supervised release. 18 U.S.C. § 3583(e)(3) (1994). This court reviews

that determination for an abuse of discretion. See United States v.

Copley, 978 F.2d 829, 831 (4th Cir. 1992). Furthermore, because

supervised release revocation proceedings and probation revocation

proceedings have the same constitutional requirements, id., the Federal Rules of Evidence are inapplicable to supervised release revocation hearings, Fed. R. Evid. 1103(d)(3). Thus, the admission of

hearsay testimony at McSwine's revocation hearing was not a violation of the evidentiary rules. McSwine's positive urinalysis tests,

together with his admissions to his probation officer of cocaine use,

were sufficient to support the court's finding that McSwine was in

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possession of a controlled substance. United States v. Battle, 993 F.2d

49, 50 (4th Cir. 1993).

McSwine next alleges that his placement into a drug treatment program by his probation officer in the Northern District of Illinois constituted a sanction. He contends that the matter was then closed and

only after he missed his treatment meeting was he in violation of his

supervised release conditions. Thus, he argues that the court was precluded from basing his revocation on his positive urine screens, a

Grade B violation, and the court could only base his revocation on his

failure to comply with the treatment program, a Grade C violation,

which would lower his guideline range. We find that the probation

officer's attempt to place McSwine in a treatment program was not

intended as a sanction but rather was an effort to make McSwine

comply with the conditions of his supervision. Moreover, the sentencing guidelines state that "[w]hen there is more than one violation of

the conditions of supervision . . . the grade of the violation is determined by the violation having the most serious grade." United States

Sentencing Commission, Guidelines Manual,§7B1.1(b) (Nov. 1995).

Thus, the court did not err by basing McSwine's revocation on his

positive urine screens.

Lastly, McSwine claims that the court abused its discretion by sentencing McSwine at the top of his guideline range. However, a claim

that a court erred by imposing a sentence at the high or low end of

a correctly calculated guideline range is generally not reviewable. See

United States v. Jones, 18 F.3d 1145, 1151 (4th Cir. 1994). Because

McSwine has not alleged that his sentence was based on an unconstitutional classification, see United States v. Holmes, 60 F.3d 1134,

1137 (4th Cir. 1995), his sentence is not reviewable.

Accordingly, we affirm McSwine's conviction and sentence for

violating the conditions of his supervised release. 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

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