UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4458

STERLING HARDY,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Richmond.

James R. Spencer, District Judge.

(CR-92-68)

Submitted: December 16, 1997

Decided: January 26, 1998

Before ERVIN and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

_________________________________________________________________

COUNSEL

Jeffrey L. Everhart, RICE & EVERHART, Richmond, Virginia, for

Appellant. Nicholas S. Altimari, UNITED STATES ATTORNEY'S

OFFICE, Richmond, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Sterling Hardy pled guilty to conspiracy to distribute cocaine, violent crimes in aid of racketeering, aiding and abetting, and use of a

firearm in relation to a crime of violence or a drug trafficking crime.

Hardy was sentenced to a term of 360 months imprisonment followed

by five years supervised release; however, after granting the Government's motion for a sentence reduction based on substantial assistance,1

the district court reduced Hardy's sentence to thirty-six months on all

counts to run concurrently. Hardy completed the imprisonment term

and began serving his supervised release.

While on supervised release, Hardy was charged with assault and

petty larceny. The facts surrounding these offenses involved a domestic dispute with Hardy's former fiance, Iris Weathers. Although the

criminal charges were not prosecuted because Weathers did not

appear to testify, Hardy's probation officer reported the offenses to

the district court and revocation proceedings were commenced.

During the revocation hearing, the district court heard testimony

from Weathers and her sister as they recounted several instances of

Hardy's assaulting Weathers and one occasion of his taking her purse.

The district court found the testimony of Weathers and her sister more

credible than that of Hardy, who denied striking Weathers or stealing

her purse.2 Consequently, the district court found that Hardy's actions

constituted the commission of "another federal, state, or local crime,"

in violation of one of the stated conditions of supervised release. The

district court revoked Hardy's supervised release and sentenced him

_________________________________________________________________

1 See U.S. Sentencing Guidelines Manual § 5K1.1 (1995).

2 Hardy's attempt to challenge the district court's credibility determination is not reviewable on appeal. See United States v. Saunders, 886 F.2d

56, 60 (4th Cir. 1989).

 2
to sixty-three months imprisonment. Hardy now appeals the revocation of his supervised release and the sentence imposed.

Hardy's counsel filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), presenting two issues for appellate review: whether

the district court erred in finding that Hardy's actions constituted a

violation of a stated condition of his supervised release, and whether

the sixty-three month sentence imposed by the court was appropriate.

The district court must revoke the supervised release of a defendant

who has violated one of the conditions of supervised release.3 The

district court properly found that Hardy's commission of assault and

petty larceny violated a condition of supervised release and properly

revoked the release. Accordingly, we affirm the district court's revocation of Hardy's supervised release.

Hardy did not object to the sentence imposed by the district court.

Therefore, we review the sentence for plain error. 4 Hardy's convictions for conspiracy to distribute cocaine5 and aiding and abetting violent crimes in aid of racketeering,6 carried a maximum term of life

imprisonment. Accordingly, each of these offenses is a Class A felony.7

And since the offenses that led to the imposition of Hardy's supervised release include Class A felonies, the statutory maximum term

of imprisonment upon revocation of his supervised release is sixty

months.8 The district court's imposition of a sixty-three month sentence exceeded the statutory maximum by three months.9 Imposing a

_________________________________________________________________

3 See 18 U.S.C. § 3583(e) (1994).

4 See United States v. Olano, 507 U.S. 725 (1993); United States v.

Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995).

5 See 21 U.S.C. §§ 841(b)(1), 846 (1994).

6 See 18 U.S.C. §§ 2, 1959(a)(1) (1994).

7 See 18 U.S.C. § 3559(a)(1) (1994).

8 See 18 U.S.C. § 3583(e)(3).

9 Hardy's assault and petty larceny offenses, Class 1 misdemeanors

under Virginia law, are Grade C violations of his supervised release. See

Va. Code Ann. § 18.2-11, -57, -96 (Michie 1996 & Supp. 1997); USSG

§ 7B1.1(a)(3). Under the table of sentencing ranges included in the Sentencing Guidelines' policy statements applicable to violations of super-

 3
sentence in excess of the statutory maximum is plain error.10 Accordingly, we vacate the sixty-three month sentence and remand for resentencing.

This court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for further

review. If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on the client.

We dispense with oral argument because the facts and legal contentions are adequately presented in the record and briefs, and oral argument would not aid the decisional process.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

_________________________________________________________________

vised release, Hardy's sentencing range was eight to fourteen months,

because he committed a Grade C violation and his criminal history category was VI. See USSG § 7B1.4(a). However, these policy statements

are not binding on the district court. See United States v. Davis, 53 F.3d

638, 640-42 (4th Cir. 1995). Accordingly, a sentence outside the guidelines range set forth in those policy statements cannot constitute plain

error.

10 See United States v. Johnson , 4 F.3d 904, 918 (10th Cir. 1993); see

generally United States v. Cobbs, 967 F.2d 1555, 1557-58 (11th Cir.

1992).

 4