UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4895

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JAMES THOMAS OXENDINE,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of Virginia, at Abingdon. James P. Jones, District 

Judge. (1:08-cr-00051-JPJ-1)

Submitted: September 29, 2015 Decided: October 9, 2015

Before NIEMEYER and THACKER, Circuit Judges, and HAMILTON, 

Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Larry W. Shelton, Federal Public Defender, Christine Madeleine 

Lee, Research and Writing Attorney, Roanoke, Virginia, for 

Appellant. Anthony P. Giorno, Acting United States Attorney, 

Jean B. Hudson, Assistant United States Attorney, 

Charlottesville, Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

James Thomas Oxendine appeals his 36-month sentence for 

violation of his supervised release. Oxendine argues that his 

revocation sentence is plainly unreasonable because the district 

court used the wrong criminal history category in calculating 

the policy statement range. We affirm.

After pleading guilty to aiding and abetting the possession 

with intent to distribute cocaine base, in violation of 

18 U.S.C. § 2 (2012) and 21 U.S.C. § 841 (2012), Oxendine was 

sentenced in 2010 to 36 months in prison, to be followed by a 6-

year term of supervised release. Oxendine’s supervised release 

commenced on January 14, 2011. While on supervised release, 

Oxendine committed new criminal offenses, to which he pled 

guilty in 2014. 

Also in 2014, Oxendine’s probation officer petitioned the 

court to revoke Oxendine’s supervised release imposed on the 

2010 conviction. At the revocation hearing, Oxendine did not 

contest the violation, nor did he object to the probation 

officer’s calculation of the applicable policy statement range 

as 33 to 36 months’ imprisonment.* The Government, apparently 

unaware of the 36-month statutory maximum, advocated for a 

 * Although the policy statement range provided a 33 to 41 

month range, that range was limited by the 3-year statutory 

maximum. 18 U.S.C. § 3583(e)(3) (2012). 
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sentence of 41 months, and Oxendine sought a sentence below the 

range. The district court ultimately sentenced Oxendine to the 

statutory maximum revocation sentence of 36 months. 

For the first time on appeal, Oxendine challenges the 

calculation of the policy statement range, arguing that the 

district court erred in utilizing Oxendine’s 2014 criminal 

history category of VI rather than his 2010 criminal history 

category of V. We review for plain error “a sentencing issue 

that was not properly preserved in the district court.” United 

States v. Aplicano-Oyuela, 792 F.3d 416, 422 (4th Cir. 2015). 

“To satisfy plain error review, the defendant must establish 

that: (1) there is a sentencing error; (2) the error is plain; 

and (3) the error affects his substantial rights.” Id. “In the 

sentencing context, the third prong . . . is satisfied if there 

is a non-speculative basis in the record to conclude that the 

district court would have imposed a lower sentence upon the 

defendant but for the error.” United States v. McLaurin, 764 

F.3d 372, 388 (4th Cir. 2014) (internal quotation marks 

omitted), cert. denied, 135 S. Ct. 1842, 1843 (2015). Moreover, 

even if all three of these elements are satisfied, we should not 

correct the error “unless the error seriously affects the 

fairness, integrity or public reputation of judicial 

proceedings.” Aplicano-Oyuela, 792 F.3d at 422 (internal 

quotation marks omitted).
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As the Government correctly concedes, the district court 

erred in calculating Oxendine’s policy statement range based on 

his 2014 criminal history category rather than his 2010 criminal 

history category, and the error was plain. See U.S. Sentencing 

Guidelines Manual, § 7B1.4 p.s., cmt. n.1 (2013) (directing use 

of criminal history category as “determined at the time the 

defendant originally was sentenced to the term of supervision”). 

The correct policy statement range was 30 to 36 months, rather 

than the 33 to 36 months noted in the probation officer’s 

violation report. However, Oxendine fails to argue, and nothing 

in the record indicates, any nonspeculative basis for concluding 

that the district court would not have arrived at the same 36-

month sentence absent this error. 

Accordingly, we conclude that Oxendine’s challenge to his 

revocation sentence cannot withstand plain error review as he 

has not established that the error affected his substantial 

rights. We therefore affirm the district court’s judgment. 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