PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-4599

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

ANTHONY WYNN, a/k/a Twin,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Norfolk. Raymond A. Jackson, District 

Judge. (2:02-cr-00178-RAJ-7)

Argued: March 25, 2015 Decided: May 20, 2015

Before SHEDD, DUNCAN, and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge Keenan wrote the opinion, 

in which Judge Shedd and Judge Duncan joined.

ARGUED: Caroline Swift Platt, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Alexandria, Virginia, for Appellant. V. Kathleen 

Dougherty, OFFICE OF THE UNITED STATES ATTORNEY, Norfolk, 

Virginia, for Appellee. ON BRIEF: Michael S. Nachmanoff, 

Federal Public Defender, Richard J. Colgan, Assistant Federal 

Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Alexandria, Virginia, for Appellant. Dana J. Boente, United 

States Attorney, Alexandria, Virginia, Darryl J. Mitchell, 

Assistant United States Attorney, OFFICE OF THE UNITED STATES 

ATTORNEY, Norfolk, Virginia, for Appellee. 
2

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider whether the district court 

erred in determining, based on the defendant’s status as a 

recidivist drug offender, that certain drug offenses committed 

during his supervised release were Grade B violations under the 

United States Sentencing Commission’s advisory policy statements

for violations of probation and supervised release (the ”policy 

statements”).1

 The defendant argues that his drug offenses while 

on supervised release constituted lesser Grade C violations, and 

that the district court improperly applied a statutory 

enhancement for recidivist conduct in reaching a contrary 

conclusion.

We hold that the district court did not err in considering 

the defendant’s prior offenses when determining the grade of his 

supervised release violations under the policy statements. 

Accordingly, we affirm the district court’s judgment.

 1 As we have previously explained, “[r]ather than issue 

guidelines to govern sentences for [violations of supervised 

release and probation], the United States Sentencing Commission 

chose instead ‘to promulgate policy statements only’ to give 

courts ‘greater flexibility’ in devising revocation sentences.” 

United States v. Crudup, 461 F.3d 433, 435 (4th Cir. 2006) 

(quoting U.S.S.G. Ch.7, pt.A, introductory cmts. 1, 3(a)).
3

I.

In 2003, Anthony Wynn was convicted of conspiracy to 

distribute and possession with intent to distribute heroin and 

cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1). 

The district court sentenced Wynn to a 150-month term of 

imprisonment, followed by a five-year period of supervised 

release. Among other things, the conditions of Wynn’s 

supervised release required that Wynn refrain from unlawful use 

of controlled substances and submit to drug testing as directed 

by his probation officer.

In May 2014, after Wynn began serving his period of 

supervised release, his probation officer filed a petition 

alleging that Wynn had violated the conditions of his 

supervision. The amended petition contained numerous alleged 

violations, including that Wynn had possessed marijuana on six 

separate occasions between February 2014 and June 2014.2

During a supervised release revocation hearing in the 

district court, Wynn admitted that he possessed marijuana on the 

several occasions alleged by the probation officer. Based on 

 2 The petition and its addenda also included allegations 

that Wynn drove a vehicle without a license, operated an 

uninsured vehicle, and operated a vehicle with tinted windows. 

The probation officer further alleged in the petition that Wynn 

failed to submit monthly supervision reports, failed to 

participate satisfactorily in substance abuse treatment, and 

failed to provide timely notification to the probation officer 

of an arrest.
4

Wynn’s admissions and the probation officer’s testimony, the 

district court found that Wynn had violated the terms of his 

supervision and, accordingly, revoked Wynn’s supervised release.

The probation officer calculated a term of imprisonment

under the advisory policy statements of between twenty-one and 

twenty-seven months. This calculation was based on the 

probation officer’s conclusion that, due to Wynn’s prior drug 

convictions, his marijuana offenses were Grade B violations 

because each offense was punishable by imprisonment of more than 

one year under a recidivist enhancement.3

 In the Presentence 

Investigation Report (PSR), the probation officer noted that in 

addition to the 2003 federal drug convictions for which Wynn was 

sentenced in part to the five-year period of supervised release, 

Wynn also had been convicted in various state courts of several 

drug offenses, including possession of heroin and possession 

with intent to distribute heroin in 2002, possession of 

marijuana in 2000, possession of heroin in 1999, and possession 

of cocaine and marijuana in 1994.

 3 The district court also found that Wynn had committed the 

other alleged violations of the conditions of his supervision. 

Under the policy statements, however, where there are multiple 

violations of the conditions of supervision, “the grade of the 

violation is determined by the violation having the most serious 

grade.” U.S.S.G. § 7B1.1(b). In this case, it is undisputed 

that the Grade B violations involving possession of marijuana 

carried the most serious grade.
5

Wynn disputed the probation officer’s conclusion that the 

marijuana offenses during his supervised release were Grade B 

violations. He argued that the six incidents of possessing 

marijuana were Grade C violations, because the “basic penalty” 

under federal law for simple possession of marijuana does not 

exceed a one-year term of imprisonment. Wynn asserted that in 

determining the grade of his violations at a revocation hearing, 

the district court was prohibited by the policy statements from 

considering his prior convictions, which only were relevant to 

determining his term of imprisonment at his original sentencing 

hearing. Wynn argued that absent any consideration of his prior 

record, his violations were merely Grade C violations, which 

would yield an advisory penalty range under the policy 

statements of between eight and fourteen months’ imprisonment.

The district court rejected Wynn’s argument, holding that 

his recidivism directly affected the grade of his supervised 

release violations, and that, therefore, his acts of possession 

of marijuana constituted Grade B offenses. The court 

accordingly adopted the probation officer’s recommended penalty 

range and sentenced Wynn to serve a term of twenty-four months’ 

imprisonment. Wynn timely filed the present appeal.
6

II.

Our review on appeal initially is confined to the question 

whether the revocation sentence is unreasonable; if the sentence 

is not unreasonable, the sentence will be affirmed.4 United 

States v. Crudup, 461 F.3d 433, 439 (4th Cir. 2006). However, 

if we conclude that the revocation sentence is unreasonable 

either procedurally or substantively, we further must consider 

whether the sentence is plainly unreasonable. Id. 

In the present case, Wynn challenges only the district 

court’s procedural calculation of the advisory sentencing range. 

Because the district court’s factual findings are not in 

dispute, the sole question before us is whether the court 

properly applied a statutory enhancement in calculating the 

applicable policy statements range, a question of law that we 

review de novo. United States v. Dowell, 771 F.3d 162, 170 (4th 

Cir. 2014). Thus, we turn to consider whether the district 

court correctly determined that Wynn’s conduct of possessing 

marijuana constituted Grade B, rather than Grade C, violations 

under the policy statements. 

 4 Our review of supervised release revocation sentences 

“follow[s] generally the procedural and substantive 

considerations that we employ in our review of original 

sentences, . . . with some necessary modifications to take into 

account the unique nature of supervised release revocation 

sentences.” Crudup, 461 F.3d at 438-39.
7

Chapter 7 of the Guidelines contains three grades of 

supervised release violations, only two of which are at issue in 

this case. See U.S.S.G. § 7B1.1(a). In general, a defendant’s 

conduct presents a Grade B violation if it is conduct 

constituting a “federal, state, or local offense punishable by a 

term of imprisonment exceeding one year.”5 Id. § 7B1.1(a)(2). 

In contrast, a Grade C violation is defined as conduct 

constituting: (1) “a federal, state, or local offense punishable 

by a term of imprisonment of one year or less;” or (2) “a 

violation of any other condition of supervision.” Id.

§ 7B1.1(a)(3).

Under federal law, although possession of a controlled 

substance by a non-recidivist defendant subjects that defendant 

to a term of imprisonment of not more than one year, a 

recidivist defendant is subject to a greater term of 

 5 However, such conduct rises to the level of a Grade A 

violation if it constitutes

(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.

U.S.S.G. § 7B1.1(a)(1).
8

imprisonment. 21 U.S.C. § 844(a). Section 844(a) provides, in 

relevant part, that a defendant

may be sentenced to a term of imprisonment of not more 

than 1 year, . . . , except that if he commits such 

offense after . . . two or more prior convictions 

under this subchapter or subchapter II of this 

chapter, or two or more prior convictions for any 

drug, narcotic, or chemical offense chargeable under 

the law of any State, or a combination of two or more 

such offenses have become final, he shall be sentenced 

to a term of imprisonment for not less than 90 days 

but not more than 3 years, . . . .

Id.

Wynn contends that under the Supreme Court’s decision in 

Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), the district 

court was prohibited from finding that the drug offenses that he 

committed during supervised release were “punishable” under an 

enhanced statutory penalty. According to Wynn, the government’s 

failure to file a notice under 21 U.S.C. § 851(a)(1), signifying 

an intent to rely on Wynn’s prior convictions at his revocation 

sentencing, precluded any consideration of those convictions in 

computing his advisory sentencing range. 

We find no merit in this argument. Section 851(a)(1) 

states, in relevant part, that

[n]o person who stands convicted of an offense under 

this part shall be sentenced to increased punishment 

by reason of one or more prior convictions, unless 

before trial, or before entry of a plea of guilty, the 

United States attorney files an information with the 

court (and serves a copy of such information on the 

person or counsel for the person) stating in writing 

the previous convictions to be relied upon.
9

21 U.S.C. § 851(a)(1). By its plain terms, this statute applies 

only to the sentencing of criminal defendants who have been 

convicted of a crime following the “entry of a plea of guilty” 

or a “trial.” Id. The statute does not contain any reference 

to supervised release revocation proceedings.

As the Supreme Court observed in Carachuri-Rosendo, Section 

851 requires that during a criminal prosecution the government 

“charge a defendant as a recidivist in the criminal information” 

before seeking a recidivist enhancement. 560 U.S. at 578. The 

Court accordingly held that the availability of an enhanced 

sentence at the time of a prior conviction may not be considered 

as part of a person’s criminal history in an immigration 

proceeding, when the government had not sought under Section 851 

to pursue the enhancement at the original sentencing for the 

criminal offense. Id. at 578-80. Thus, the import of the 

Court’s holding was that the government was not permitted to 

treat a criminal offense in an immigration proceeding as being 

more serious than the offense was treated at the time of the 

actual criminal prosecution. 

Contrary to Wynn’s position, nothing in the decision in 

Carachuri-Rosendo suggests that Section 851 plays any role in a 

supervised release revocation hearing, or prevents a district 

court from considering the fact of a defendant’s prior 

convictions during such a proceeding. Indeed, the very purpose 
10

of a supervised release revocation hearing is to determine the 

gravity of the breach of trust committed by the defendant in the 

context of the “conditional liberty” he was granted following 

his conviction of the underlying offenses. See United States v. 

Ward, 770 F.3d 1090, 1098 (4th Cir. 2014); Crudup, 461 F.3d at 

437-38. Thus, a determination of the gravity of a defendant’s 

breach of trust, as reflected by the sentencing mandate of 

Section 844(a), necessarily requires consideration of the 

defendant’s criminal history unencumbered by a notice 

requirement applicable to an original criminal prosecution.

Wynn next argues, however, that the district court was 

constrained to consider only the “basic” penalty imposed by the 

statute for simple possession of marijuana, rather than the 

penalty imposed by the statute for such acts committed by a 

recidivist defendant. In support of his position, Wynn relies 

on Application Note 1 to U.S.S.G. § 7B1.1, which states that

[u]nder 18 U.S.C. §§ 3563(a)(1) and 3583(d), a 

mandatory condition of probation and supervised 

release is that the defendant not commit another 

federal, state, or local crime. A violation of this 

condition may be charged whether or not the defendant 

has been the subject of a separate federal, state, or 

local prosecution for such conduct. 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. 
11

U.S.S.G. § 7B1.1 cmt. n. 1. Wynn focuses exclusively on the 

final two sentences of the commentary, asserting that “actual 

conduct” describes only conduct committed on supervised release 

completely divorced from the defendant’s earlier conduct. Id. 

We disagree with Wynn’s argument. 

Viewed in context, the commentary that Wynn cites fails to 

support his position. Application Note 1 instructs that in 

grading a violation of supervised release, a district court may 

consider not only conduct for which a defendant is prosecuted in 

a criminal case, but all of a defendant’s conduct, “whether or 

not the defendant has been the subject of . . . prosecution for 

such conduct.” Id.; see United States v. Trotter, 270 F.3d 

1150, 1155 (7th Cir. 2001) (“Application Note 1 tells the 

district judge to consider what the person on supervised release 

did, rather than what crimes he has been charged with.” 

(emphases in original)). Rather than limiting a district 

court’s ability to consider a defendant’s conduct, Application 

Note 1 suggests that district courts consider all conduct that 

affects the maximum penalties for a supervised release 

violation. See Trotter, 270 F.3d at 1155 (“A judge engaged in 

real-offense sentencing does not ignore prior offenses that 

affect the maximum punishment; recidivist enhancements are part 

of real-offense sentencing.”).
12

Accordingly, we hold that the district court did not err in 

concluding that Wynn’s prior drug convictions increased the 

extent to which his marijuana offenses during supervised release 

were “punishable” under Section 844(a). Thus, the district 

court correctly determined that Wynn’s multiple acts of 

possessing marijuana during his supervised release constituted 

Grade B violations under the Guidelines’ Chapter 7 advisory 

policy statements.

III.

For these reasons, Wynn’s revocation sentence is not 

unreasonable, and we affirm the district court’s judgment.

AFFIRMED