UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-4385

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FREEDOM BORN DIVINE, a/k/a Rico Rivers,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Mark S. Davis, District 

Judge. (2:11-cr-00168-MSD-TEM-1)

Submitted: November 6, 2013 Decided: December 3, 2013

Before SHEDD and FLOYD, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam.

Michael S. Nachmanoff, Federal Public Defender, Richard J. 

Colgan, Assistant Federal Public Defender, Caroline S. Platt, 

Appellate Attorney, Norfolk, Virginia, for Appellant. Neil H.

MacBride, United States Attorney, V. Kathleen Dougherty, 

Assistant United States Attorney, Norfolk, Virginia, for 

Appellee.

Unpublished opinions are not binding precedent in this circuit.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

Freedom Born Divine appeals the fifteen-month sentence 

imposed upon the revocation of his supervised release term. On

appeal, Divine asserts that his revocation sentence was 

procedurally unreasonable, because the court erred in concluding 

that his most serious violation—possession of marijuana—was 

properly classified as a Grade B violation. Finding no 

reversible error, we affirm. 

Generally, we will affirm a sentence imposed upon 

revocation of supervised release unless the sentence is “plainly 

unreasonable.” See United States v. Crudup, 461 F.3d 433, 437 

(4th Cir. 2006). We first determine whether the sentence is 

unreasonable, applying the same general inquiry used to assess 

the reasonableness of original sentences. Id. at 438. If the 

sentence is found unreasonable, we must determine whether it is 

“plainly” so, relying on the same definition of “plain” applied 

when conducting a plain-error analysis. United States v. 

Thompson, 595 F.3d 544, 547-48 (4th Cir. 2010).

Because Divine did not challenge in the district court 

the characterization of his possession-of-marijuana violation as 

a Grade B violation, we review the issue for plain error. See

United States v. Bennett, 698 F.3d 194, 199 (4th Cir. 2012), 

cert. denied, 133 S. Ct. 1506 (2013). To establish plain error, 

Divine must show (1) an error occurred, (2) the error was plain, 
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and (3) the error affected his substantial rights. United 

States v. King, 628 F.3d 693, 699 (4th Cir. 2011). Even if he 

makes this showing, we will exercise our discretion to reverse 

“only if the error seriously affects the fairness, integrity or 

public reputation of judicial proceedings.” United States v. 

Powell, 680 F.3d 350, 358 (4th Cir.) (internal quotation marks 

omitted), cert. denied, 133 S. Ct. 376 (2012). “The term 

‘plain’ error is synonymous with ‘clear’ or ‘obvious’ error. An 

error is plain if the settled law of the Supreme Court or this 

circuit establishes that an error has occurred.” United States 

v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013) (some internal 

quotation marks omitted; citations omitted); see also United 

States v. Strieper, 666 F.3d 288, 295 (4th Cir. 2012) (“[W]here 

we have yet to speak directly on a legal issue and other 

circuits are split, a district court does not commit plain error 

by following the reasoning of another circuit.”).

Divine asserts that the district court plainly erred 

in classifying his marijuana possession as a Grade B violation, 

rather than a Grade C violation. Grade A violations include 

conduct constituting (A) a federal, state, or local 

offense punishable by a term of imprisonment exceeding 

one year that (i) is a crime of violence, (ii) is a 

controlled substance offense, or (iii) involves 

possession of a firearm or destructive device of a 

type described in 26 U.S.C. § 5845(a); or (B) any 

other federal, state, or local offense punishable by a 

term of imprisonment exceeding twenty years. 
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U.S. Sentencing Guidelines Manual (“USSG”) § 7B1.1(a)(1), p.s.

(2003). Grade B violations include “conduct constituting any 

other federal, state, or local offense punishable by a term of 

imprisonment exceeding one year.” USSG § 7B1.1(a)(2), p.s. 

Grade C violations include conduct constituting any other 

criminal offense punishable by a year or less of imprisonment or 

any other violation of a supervised release condition. USSG 

§ 7B1.1(a)(3), p.s. “The 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 the violation is to be based on the 

defendant’s actual conduct.” USSG § 7B1.1 cmt. n.1.

The parties agree that Divine’s conduct would be 

punishable as a federal offense under 21 U.S.C. § 844(a) (2012), 

which criminalizes the simple possession of a controlled 

substance. A person who violates this provision and has no 

prior drug conviction is subject to a maximum sentence of one 

year of imprisonment. Id. However, a person who violates this 

provision and has a prior drug conviction is subject to a 

sentence of fifteen days’ to two years’ imprisonment. Id.

Although Divine’s criminal history reveals at least 

one prior controlled substance conviction, he asserts that this 

prior conviction is not “conduct” relevant in determining the 

classification for his supervised release violation. He relies 
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upon both Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), and 

United States v. Simmons, 649 F.3d 237, 243 (4th Cir. 2011) (en 

banc), to argue that the court could not consider the recidivist 

enhancement for his hypothetical § 844(a) offense because the 

Government was unable to comply with the protections of 21 

U.S.C. § 851 (2012) in the context of a revocation proceeding. 

He also identifies authority affirming revocation sentences for 

simple possession violations that were classified as Grade C 

violations. 

In response, the Government argues that the district 

court did not err in classifying Divine’s offense as a Grade B 

violation, as Divine was eligible for the recidivist enhancement 

due to his prior conviction, and § 851 notice requirements are 

inapplicable in the supervised release context. The Government

also distinguishes Carachuri-Rosendo and Simmons and identifies 

unpublished cases affirming revocation sentences in which simple 

possession violations were classified as Grade B violations.

Ultimately, we need not resolve this dispute, as any 

error by the district court was not “plain.” The district 

court’s conclusion that Divine’s marijuana possession was a 

Grade B offense is supported by unpublished authority from this 

circuit, e.g., United States v. Jemerson, 132 F. App’x 488, 489-

90 (4th Cir. 2005) (No. 04-5008); United States v. Justice, 70 

F. App’x 719, 720 (4th Cir. 2003) (No. 03-4388), as well as 
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authority from other circuits, see United States v. Trotter, 270 

F.3d 1150, 1154 (7th Cir. 2001) (recognizing that, when 

determining whether defendant’s conduct is punishable by more 

than one year of imprisonment in context of supervised release 

revocation, “court must determine whether the conduct is a 

felony (etc.) after prior convictions are taken into account”); 

United States v. Crace, 207 F.3d 833, 837-38 (6th Cir. 2000) 

(permitting court to consider prior convictions when determining 

whether conduct was properly classified as Grade B violation); 

United States v. Seiber, 516 F. App’x 208, 214-16 (3d Cir. 2013) 

(No. 12-2523) (rejecting argument, under Carachuri-Rosendo, that

§ 851 notice was required to apply recidivist enhancement when 

determining possible penalty for simple possession, and 

concluding recidivist simple possession is Grade B violation); 

United States v. Jackson, 510 F. App’x 149, 155-56 (3d Cir.)

(No. 12-2390) (rejecting argument that supervised release 

violation based on simple possession could not be Grade B felony 

unless Government filed § 851 information), cert. denied, 133 S. 

Ct. 1477 (2013). Moreover, to the extent Carachuri-Rosendo and 

Simmons may provide support for Divine’s conclusion that his 

conduct was a Grade C violation, they do not clearly compel that 

conclusion, as they do not address drug possession in the 

context of revocation proceedings. Thus, while this circuit’s 

unpublished authority finding simple possession offenses as 
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Grade B violations predates both Carachuri-Rosendo and Simmons, 

neither Carachuri-Rosendo nor Simmons so clearly abrogates the 

court’s prior reasoning as to require reversal for plain error. 

The district court’s classification of Divine’s conduct as a 

Grade B offense therefore did not run afoul of any settled law 

and was not obviously incorrect under available authority.

Because Divine cannot demonstrate plain error, we 

affirm the district court’s judgment. We dispense with oral 

argument because the facts and legal contentions are adequately 

presented in the materials before this court and argument would 

not aid the decisional process.

AFFIRMED