UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-4724

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

DERRICK VERNARD TERRY, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Eastern 

District of North Carolina, at Raleigh. Terrence W. Boyle, 

District Judge. (5:99-cr-00102-BO-1) 

Submitted: April 9, 2009 Decided: June 29, 2009 

Before MICHAEL, SHEDD, and AGEE, Circuit Judges. 

Vacated and remanded by unpublished per curiam opinion. 

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, 

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Unpublished opinions are not binding precedent in this circuit.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

Derrick Vernard Terry appeals from the fifty-one month 

sentence imposed after he was found in violation of the terms 

and conditions of his supervised release. Terry alleges that 

his sentence is plainly unreasonable because he was sentenced 

based on a Grade A violation and his conduct only constituted a 

Grade B violation. 

 On April 22, 2008, the Probation Officer filed a 

motion for revocation against Terry, alleging that Terry 

violated the terms of his supervised release by possessing a box 

of ammunition for a .40 caliber semi-automatic handgun. Terry 

advised Special Agent James Ament of the Bureau of Alcohol 

Tobacco Firearms and Explosives (ATFE) that he purchased the 

handgun from a co-worker. The supervised release violation 

worksheet listed Terry’s violation as “criminal conduct,” a 

Grade A violation. With a criminal history category of VI, the 

range of imprisonment was 51-60 months. 

 Terry admitted the violation and stipulated that there 

was a factual basis for it. Agent Ament testified that he 

participated in the search of the residence where Terry was 

staying in relation to a state probation warrant out for Terry. 

A partially full box of .40 caliber ammunition was found. Agent 

Ament interviewed Terry about the ammunition and whether Terry 

had a gun. Terry stated that he purchased a handgun from a co2 
worker for his girlfriend’s protection when he was not at home 

with her. 

 Agent Ament also testified that he and Terry “talked 

about some drugs for awhile, and I advised Mr. Terry, I said we 

[k]now you are still dealing in drugs. And he said he might be 

dabbling in it a little bit to pay some bills.” (J.A. 16). 

Agent Ament also testified that Terry listed several individuals 

in the Rocky Mount area from whom he “felt he could get drugs.” 

(J.A. 17). Terry later sent a letter to the probation office 

stating that Agent Ament had made up the story about his 

possible admission of drug distribution. 

The district court asked the Assistant United States 

Attorney for the sentencing range and she replied the range was 

51 to 60 months. Defense counsel then asked the court for 

leniency since Terry was subject to future prosecution. The 

court pronounced a sentence of 51 months without additional 

reasoning or discussion. 

 We review a sentence imposed as a result of a 

supervised release violation to determine whether the sentence 

was plainly unreasonable. United States v. Crudup, 461 F.3d 

433, 437 (4th Cir. 2006). The first step in this analysis is a 

determination of whether the sentence was unreasonable. Id. at 

438. In determining reasonableness, we follow generally the 

procedural and substantive considerations employed in reviewing 

3 
original sentences. Id. If a sentence imposed after a 

revocation is not unreasonable, the court will not proceed to 

the second prong of the analysis--whether the sentence was 

plainly unreasonable. Id. at 438-39. However, a court’s 

improper calculation of the Guidelines range may “render a 

sentence unreasonable.” United States v. Jones, 531 F.3d 163, 

170 (2d Cir. 2008) (citing Gall v. United States, 128 S. Ct. 

586, 597 (2008)). 

 Although a district court must consider the policy 

statements in Chapter Seven of the Sentencing Guidelines along 

with the statutory requirements of 18 U.S.C. § 3583 (2006) and 

18 U.S.C. § 3553(a) (2006), “‘the court ultimately has broad 

discretion to revoke its previous sentence and impose a term of 

imprisonment up to the statutory maximum.’” Crudup, 461 F.3d at 

439 (quoting United States v. Lewis, 424 F.3d 239, 244 (2d Cir. 

2005)) (internal quotation marks omitted). Finally, on review, 

we will assume a deferential appellate posture concerning issues 

of fact and the exercise of discretion. Crudup, 461 F.3d at 

439. 

 Terry argues that his sentence is unreasonable because 

he was sentenced based on a Grade A violation, but that his 

violation qualified only as a Grade B violation and therefore 

the Guidelines range was improperly calculated. He further 

argues that his sentence is unreasonable because the district 

4 
court did not provide a sufficient explanation of the sentence 

to allow this court to review its reasonableness. Because Terry 

did not raise the issue in the district court, the claim is 

reviewed for plain error. See Fed. R. Crim. P. 52(b); United 

States v. White, 405 F.3d 208, 215 (4th Cir. 2005). To 

demonstrate plain error, a defendant must establish that error 

occurred, that it was plain, and that it affected his 

substantial rights. United States v. Olano, 507 U.S. 725, 731-

32 (1993). If a defendant establishes these requirements, the 

court’s “discretion is appropriately exercised only when failure 

to do so would result in a miscarriage of justice, such as when 

the defendant is actually innocent or the error seriously 

affects the fairness, integrity or public reputation of judicial 

proceedings.” Id. at 736 (internal quotation marks 

omitted). 

 The conduct that constituted the violation could have 

brought a prosecution under 18 U.S.C. § 922(g)(1) (2006). Under 

Application Note 5 of U.S. Sentencing Guidelines Manual § 7B1.1, 

“possession of a firearm . . . will generally constitute a Grade 

B violation, because 18 U.S.C. § 922(g) prohibits a convicted 

felon from possessing a firearm.” The conduct that Terry 

admitted and that was most specifically outlined in the motion 

for revocation involved only the possession of ammunition and 

admission that he had purchased a firearm. With a Grade B 

5 
violation and a criminal history category of VI, the Guidelines 

range would have been 21 to 27 months. 

 The Government argues that there was no plain error in 

sentencing Terry for a Grade A violation because Agent Ament 

testified that Terry admitted that he was still dealing in 

drugs. A felony offense that is a controlled substance offense 

is conduct that constitutes a Grade A violation. USSG 

§ 7B1.1(a)(1). Agent Ament’s testimony was that Terry admitted 

that he might be dabbling in distribution and provided names of 

dealers from whom he could get drugs. The Government contends 

that the AUSA maintained below that Terry was still dealing 

drugs, and that Terry did not counter or object to this 

argument. 

 The Guidelines state that 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, comment. n.1. 

Therefore the Government contends that all of Terry’s alleged 

conduct may be considered in determining the grade of the 

violation. 

 The district court did not make any findings on the 

alleged drug distribution. Although Terry did not contest Agent 

Ament’s testimony at the hearing, he did send a letter to his 

6 
probation officer stating that Agent Ament’s summary of his 

interview with him was false. This letter was introduced as 

evidence at the hearing. Further, without a firm statement from 

the court that it was finding a violation based upon the alleged 

drug distribution, it can be assumed that the court was 

confirming the charge detailed in the motion for revocation, 

which was based only on the ammunition and firearm. 

 As purely advisory policy statements, the sentencing 

ranges provided by USSG § 7B1.4, p.s., do not bind the 

sentencing court. See United States v. Davis, 53 F.3d 638, 640 

n.6, 642 (4th Cir. 1995). The district court has broad 

authority to revoke the supervised release sentence and impose a 

term of imprisonment up to the statutory maximum. Crudup, 461 

F.3d at 440. Therefore, the district court could have sentenced 

Terry up to the five-year statutory maximum. However, 

considering that it sentenced Terry at the lowest end of the 

Guidelines range, we conclude that there exists a nonspeculative basis to infer prejudice. 

 We therefore vacate the judgment and remand for 

further proceedings to determine whether the district court 

found a Grade A or Grade B violation, calculate a new Guidelines 

range, if necessary, and resentence Terry accordingly. We 

dispense with oral argument because the facts and legal 

7 
8 

contentions are adequately presented in the materials before the 

court and argument would not aid the decisional process. 

VACATED AND REMANDED