UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-4308

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

TERRY LASHAVIOUS MCMILLIAN,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Wilmington. Malcolm J. Howard, 

Senior District Judge. (7:11-cr-00102-H-1)

Argued: May 12, 2016 Decided: June 15, 2016

Before KING and DIAZ, Circuit Judges, and DAVIS, Senior Circuit 

Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Jennifer Claire Leisten, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Raleigh, North Carolina, for Appellant. Christopher 

Michael Anderson, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, 

North Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, 

Federal Public Defender, Stephen C. Gordon, Assistant Federal 

Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, 

North Carolina, for Appellant. Thomas G. Walker, United States 

Attorney, Jennifer P. May-Parker, Assistant United States 

Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North 

Carolina, for Appellee.
2

Unpublished opinions are not binding precedent in this circuit.
3

PER CURIAM:

While on supervised release in North Carolina, Terry 

Lashavious McMillian was arrested and charged in state court

with various criminal offenses. Although those charges were

later dismissed, McMillian’s probation officer sought to revoke 

supervised release on the facts underlying the state charges. 

The district court agreed, revoked McMillian’s supervised 

release, and sentenced him to twenty-four months in prison. 

McMillian appeals the court’s revocation decision and sentence.

As explained below, we affirm.

I.

A.

In December 2011, McMillian pleaded guilty in the Eastern 

District of North Carolina to a conspiracy offense under 18 

U.S.C. § 371. In April 2012, the district court sentenced him

to forty-six months in prison and three years of supervised 

release. As a condition of supervised release, McMillian could 

not “commit another federal, state, or local crime.” See J.A. 

14.1 In January 2014, McMillian was released from prison and 

began serving his three-year term of supervised release. 

 1 Citations herein to “J.A. __” refer to the contents of the 

Joint Appendix filed by the parties in this appeal.
4

On March 1, 2015, McMillian was arrested and charged in 

Columbus County, North Carolina, on four state criminal 

offenses: “Damage to Real Property”; “Assault by 

Strangulation”; “Larceny of a Motor Vehicle”; and “Second Degree 

Kidnapping.” See J.A. 18, 37. Three days later, as a result of 

those charges, McMillian’s probation officer moved the district 

court for revocation of supervised release. The motion alleged

that, on February 25 and 26, 2015, McMillian had assaulted Ashea 

Covington — his girlfriend and the complaining witness — “by 

holding her down on the ground and strangling her.” Id. at 18. 

He also “forced her into her car and drove around for several 

hours not allowing her to get out,” and then took her car 

without her permission. Id. 

Covington later recanted the allegations she had made 

against McMillian, and the prosecutor dismissed the state

criminal charges. The revocation motion remained pending in the 

district court, however, and on May 28, 2015, the court

conducted an evidentiary hearing on that motion. Three

witnesses testified: Tyler Reeves, a sergeant with the Columbus 

County Sheriff’s Office; John Cooper, McMillian’s probation 

officer; and Covington. Reeves recounted the allegations 

Covington had made against McMillian shortly after the assault,

and authenticated and introduced Covington’s signed written 

statement, which detailed those events. Cooper authenticated
5

and introduced the written statement of Pearl Carter —

Covington’s mother — concerning the assault. In her testimony, 

Covington again repudiated the allegations she had made against 

McMillian. McMillian did not testify, but introduced into 

evidence the dismissals of the state charges.

B.

The evidence at the hearing was that, on February 24, 2015, 

McMillian showed up uninvited at the residence of Covington and 

Carter.2 When Covington and Carter refused entry, McMillian 

broke their glass storm door.

The following day, McMillian and Covington had an argument, 

which escalated to physical violence when McMillian attacked

Covington. After the assault, McMillian ordered Covington to 

get in her car, and then drove her around Columbus and Bladen 

Counties for several hours. When McMillian stopped for gas —

which he bought with Covington’s debit card — he dared her “to 

yell for help” and threatened to “beat her dead” if she did. 

See J.A. 100. McMillian eventually released Covington, but he 

kept her car, her debit card, and one of her credit cards.

Carter called the Columbus County Sheriff’s Office to 

report that her daughter had been assaulted. Sergeant Reeves, 

 2 We recite the facts in the light most favorable to the 

government, as the prevailing party at the revocation hearing. 

See United States v. Thum, 749 F.3d 1143, 1145 (9th Cir. 2014). 
6

who responded to the call, interviewed both Carter and Covington

on February 28, 2015. He observed that Covington’s “whole [eye] 

was bloodshot red” from a “busted” blood vessel. See J.A. 34-

35. Covington told Reeves that she suffered the eye injury when 

McMillian strangled her. Reeves also took Covington’s written 

statement, which reads, in pertinent part: 

[O]n Wednesday, February [25], 2015[,] [McMillian and 

I] exchanged words, after which [McMillian] jumped at 

me. As I was knocked to the ground, I was choked 

nearly unconscious. I urinated on myself. He then 

sat on my chest and slapped me in my face several 

times resulting in a busted lip, busted blood vessels 

in right eye, swollen jaw. He also forced my fingers 

back nearly as far as they would go. Eventually he 

allowed me up and told me to go wash my face up 

because my mouth was bleeding. He then took my entire 

set of keys and told me to go get in my vehicle and 

that he was driving. He said that if I tried anything 

crazy that he would beat me dead where I was despite 

location and company. He rode me around until the wee 

hours of the morning and took me back to my mother’s 

home. He has refused to give me the keys back to my 

vehicle to this moment.

Id. at 99.

At about 9:00 a.m. on March 2, 2015, Covington visited the 

emergency room of the Columbus County Regional Medical Center, 

complaining of pain around her temples and in the ring fingers 

of both hands, as well as generalized body pain. She reported 

to the medical personnel that her injuries were caused by

McMillian’s assault about a week earlier, when he “strangled and 

choked” her, kicked her, and “slapped [her] in [the] face 

multiple times.” See J.A. 102, 110. On physical examination, a 
7

physician assistant noted subconjunctival hemorrhage — a broken

blood vessel in the white of the eyes. An x-ray showed a 

possible hairline fracture of Covington’s left ring finger. A 

splint was placed on each of Covington’s ring fingers, and she 

was discharged from the hospital.

C.

After considering the evidence presented and argument from 

counsel, the district court ruled that McMillian had violated 

the terms of his release “by his criminal conduct, to include 

assault and probable theft of a motor vehicle.” See J.A. 89. 

Before sentencing McMillian, the court explained its 

determination of the applicable Sentencing Guidelines range:

The court believes that this is a grade A violation 

and the defendant has a criminal history category of 

roman numeral V. Under Chapter 7, it would be a 30 to 

37-month type of sentence available for the court to 

consider; however, there’s a [statutory] maximum of 24 

months.

Id.

Relying on Covington’s hearing testimony, in which she 

repudiated her earlier version of the relevant events, McMillian 

asked the district court to consider downgrading his supervised 

release violation from grade A to grade C, based on the lesser

offenses of misdemeanor assault and unauthorized use of a motor 

vehicle. The court declined to do so, however, finding

Covington’s exculpatory testimony “unreliable in its totality,”
8

and instead crediting her earlier inculpatory statements to 

Sergeant Reeves and the hospital staff. See J.A. 91. McMillian

also sought a lenient sentence on the ground that he had 

otherwise complied with the conditions of his supervised 

release. The court rejected that entreaty as well, explaining 

that, although McMillian “hadn’t had any problems while he had a 

job,” he also had “a long history of this type of conduct.” Id.

at 92.

The district court then revoked McMillian’s supervised 

release and sentenced him to twenty-four months in prison. In 

rendering its sentence, the court explained that it had 

“considered the policy statements contained in Chapter 7 of the 

U.S. Sentencing Guidelines as well as the other factors set out 

in [18 U.S.C. § 3553(a)].” See J.A. 95. The court recommended 

that, while incarcerated, McMillian “be exposed to the most 

intense anger management training and education possible.” Id.

at 96. Later that day, the court entered its judgment. 

McMillian has timely appealed, and we possess jurisdiction 

pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.

II.

On appeal, McMillian presents three contentions of error. 

First, he argues that the district court erred in finding that 

he committed the state offense of assault by strangulation. 
9

Second, he contends that the court plainly erred in calculating

the applicable Sentencing Guidelines range. Finally, he 

maintains that the court failed to adequately explain the

twenty-four month revocation sentence. We address those

contentions in turn.

A.

McMillian first contends that the district court erred in 

finding that he committed the North Carolina offense of assault 

by strangulation. The government responds that the court’s 

finding was supported by the evidence and thus was not clearly 

erroneous. To revoke a defendant’s supervised release, a

district court need only find by a preponderance of the evidence 

that the defendant violated a condition of release. See United 

States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992). We review

such a factual finding for clear error. See United States v. 

Padgett, 788 F.3d 370, 373 (4th Cir. 2015).

Assault by strangulation is proscribed by N.C. Gen. Stat. 

§ 14-32.4(b), which provides that “any person who assaults 

another person and inflicts physical injury by strangulation is 

guilty of a Class H felony.” The elements of assault by 

strangulation are (1) an assault and (2) the infliction of

physical injury by strangulation. See State v. Little, 654 

S.E.2d 760, 764 (N.C. Ct. App. 2008).
10

McMillian contends on appeal that the government failed to 

show by a preponderance of the evidence that Covington suffered 

any physical injury resulting from strangulation. In support of 

that contention, McMillian emphasizes the absence of evidence of 

either redness or bruising around Covington’s neck. Addressing

Covington’s eye injury, McMillian points to Covington’s written 

statement, which attributes that injury to being slapped in the 

face, rather than being strangled. 

The evidence, however, proved that McMillian had choked

Covington almost to the point of unconsciousness, causing her to 

lose control of her bladder. As a result, Covington suffered a 

subconjunctival hemorrhage — an eye injury that commonly occurs

as a result of either strangulation or a direct blow to the eye. 

See State v. Lanford, 736 S.E.2d 619, 628 (N.C. Ct. App. 2013). 

Although Covington reported being slapped across the face, there 

is no evidence to suggest that McMillian struck her directly in 

her eye. Moreover, Covington complained of neck pain to the 

medical personnel at the hospital. Accordingly, we are 

satisfied that the court did not clearly err in finding, by a 

preponderance of the evidence, that McMillian strangled 

Covington and thereby caused her to suffer a physical injury. 

See State v. Lowery, 743 S.E.2d 696, 699 (N.C. Ct. App. 2013) 

(finding sufficient evidence presented to satisfy physical 
11

injury prong of assault by strangulation where evidence of 

injuries was consistent with strangulation).3

B.

McMillian next contends — for the first time on appeal —

that the district court miscalculated the advisory Guidelines

range for his supervised release violation. Specifically, he 

argues that the court misclassified assault by strangulation as

a “crime of violence” under the applicable Guidelines provision, 

and thus overstated the severity of his violation.

We review a sentence imposed for a supervised release 

violation “to determine if it is ‘plainly unreasonable.’” See

United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). In 

making that determination, “we first consider whether the 

sentence imposed is procedurally or substantively unreasonable.” 

See United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). 

As relevant here, procedural error in the sentencing context may 

include improperly calculating the Guidelines range or failing 

to adequately explain the chosen sentence. See United States v. 

 3 McMillian also contends that the district court erred in 

finding that he committed larceny with respect to Covington’s 

car, insisting that the prosecutors failed to prove that he 

intended to permanently deprive Covington of her vehicle. That 

contention lacks merit. The evidence showed that McMillian took 

Covington’s car without her consent and was yet in possession of 

the vehicle when he was arrested almost a week later. On that 

evidence, the court was entitled to infer that McMillian 

intended to keep the car and thus had committed larceny.
12

Medina-Campo, 714 F.3d 232, 234 (4th Cir. 2013). If we conclude 

that a sentence is unreasonable, we then consider whether it is 

also “plainly unreasonable, relying on the definition of ‘plain’ 

that we use in our ‘plain’ error analysis,” i.e., clear or 

obvious. See Crudup, 461 F.3d at 439.

An issue pursued on appeal but not preserved in the lower 

court is reviewed for plain error only. See United States v. 

Olano, 507 U.S. 725, 731-32 (1993). To satisfy that standard, a 

defendant must show “(1) that an error was made; (2) that the 

error was plain; and (3) that the error affected his substantial 

rights.” See United States v. Carthorne, 726 F.3d 503, 510 (4th 

Cir. 2013). We will correct a plain error only when those 

criteria are satisfied and doing so is necessary to prevent “a 

miscarriage of justice” or to ensure “the fairness, integrity or 

public reputation of judicial proceedings.” See United States 

v. Whitfield, 695 F.3d 288, 303 (4th Cir. 2012) (internal 

quotation marks omitted).

1.

Chapter 7 of the Sentencing Guidelines addresses probation 

and supervised release violations. The advisory Guidelines 

range for a violation of a condition of supervised release is 

determined by the Revocation Table contained in Guidelines 

section 7B1.4(a). The range applicable to a particular 

defendant depends on three factors, only two of which are 
13

relevant to these proceedings: the defendant’s criminal history 

category, as determined at the time the defendant was sentenced 

to the term of supervision; and the grade of the supervised 

release violation. See USSG § 7B1.4(a).4 If the range specified 

by the Revocation Table is entirely above the statutory maximum 

sentence or below the statutory minimum sentence, then the 

statutory maximum or minimum sentence, respectively, “shall be 

substituted for the applicable range.” See id. § 7B1.4(b)(1), 

(2).

Guidelines section 7B1.1 creates three grades of supervised 

release violations: A, B, and C. Grade A violations arise from

conduct constituting either an offense punishable by more than 

twenty years in prison; or an offense punishable by more than 

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

controlled substance offense, or (iii) involves possession of a 

firearm or destructive device.” See USSG § 7B1.1(a)(1). Grade 

B violations encompass all conduct constituting any other

offense punishable by more than one year in prison. Id.

§ 7B1.1(a)(2). All other supervised release violations are 

classified as grade C. Id. § 7B1.1(a)(3).

 4 We refer in this opinion to the 2014 edition of the 

Sentencing Guidelines, the edition applicable to McMillian’s 

sentencing for his supervised release violation.
14

Application Note 2 to Guidelines section 7B1.1 explains 

that the term “crime of violence” is defined in Guidelines 

section 4B1.2. That section provides as follows:

(a) The term “crime of violence” means any offense 

under federal or state law, punishable by imprisonment 

for a term exceeding one year, that —

(1) has as an element the use, attempted 

use, or threatened use of physical force 

against the person of another, or

(2) is burglary of a dwelling, arson, or 

extortion, involves use of explosives, or 

otherwise involves conduct that presents a 

serious potential risk of physical injury to 

another.

Paragraph (a)(1) of section 4B1.2 is commonly known as the 

“force clause,” and the portion of paragraph (a)(2) that starts 

with “otherwise” is referred to as the “residual clause.” See

United States v. Hemingway, 734 F.3d 323, 327 (4th Cir. 2013) 

(employing that terminology for similar statutory provision). 

In determining whether an offense is a crime of violence under 

either clause, we utilize the categorical approach, which 

focuses solely on the elements of the offense, rather than on 

the facts of the case. See Carthorne, 726 F.3d at 511.

2.

The district court applied the foregoing legal framework 

when it sentenced McMillian for his supervised release 

violation. The court determined that McMillian had committed a 

grade A violation and indicated that his criminal history 
15

category was V. For such a defendant, the Revocation Table 

specifies a Guidelines range of 30 to 36 months.5 As the court 

also recognized, however, McMillian was subject to a statutory 

maximum sentence of twenty-four months, pursuant to 18 U.S.C. 

§ 3583(e)(3). Accordingly, under Guidelines section 

7B1.4(b)(1), the twenty-four month statutory maximum sentence 

was “substituted for the applicable range.” 

McMillian contends that the district court misclassified 

his violation as grade A, and thereby miscalculated the advisory 

Guidelines range. Specifically, he maintains that assault by 

strangulation is not categorically a crime of violence, and that 

the court thus should have classified his violation as grade B

rather than grade A. Under that scenario, McMillian’s 

Guidelines range would have been 18 to 24 months. The 

government, for its part, maintains that assault by 

strangulation qualifies as a crime of violence under the force 

clause of Guidelines section 4B1.2.

As McMillian acknowledges, he failed to raise this 

contention in the district court. As such, it is subject to 

plain error review only, and McMillian must therefore show that 

 5 At the revocation hearing, the district court misstated

the range provided by the Revocation Table in Guidelines section 

7B1.4 as 30 to 37 months, rather than 30 to 36 months. That

misstatement had no impact on McMillian’s sentencing.
16

it is “clear” or “obvious” that assault by strangulation is not 

a crime of violence. See Olano, 507 U.S. at 734.

3.

In support of his contention that assault by strangulation 

is not a crime of violence, McMillian relies on our recent 

decision in United States v. Vinson, 805 F.3d 120 (4th Cir. 

2015). In Vinson, we recognized that the “assault” element of 

North Carolina’s assault offenses does not require the use or 

attempted use of physical force, because a defendant can commit 

an assault under North Carolina law by recklessly or carelessly 

applying physical force. Id. at 125-26 (citing State v. Jones, 

538 S.E.2d 917, 923 (N.C. 2000)). Under the law of this 

circuit, the negligent or reckless application of force does not 

constitute the “use” of force. See id. at 125 (citing Garcia v. 

Gonzales, 455 F.3d 465, 469 (4th Cir. 2006)). Our Vinson

decision does not control in this case, however, because the 

assault element addressed therein is only one element of the 

offense of assault by strangulation. As relevant here, Vinson

did not consider whether the infliction of physical injury by 

strangulation — the other element of assault by strangulation —

entails the use of physical force.

McMillian contends, as he must, that one can inflict injury 

by strangulation without using physical force. In the context 

of plain error review, we are content to assume that there is 
17

some scenario in which a person could commit an assault by 

strangulation without intentionally applying physical force, and 

thus that the first prong of Olano has been satisfied. See

United States v. Godwin, 272 F.3d 659, 679 (4th Cir. 2001) 

(assuming that error was committed, so as to satisfy first prong 

of Olano). It is apparent, however, that McMillian has failed 

to show that the assumed error is plain, as required by the 

second prong of Olano. Indeed, he has identified no authority —

state or federal — supporting his position that one can inflict 

physical injury by strangulation without using physical force. 

Cf. United States v. King, 628 F.3d 693, 700 (4th Cir. 2011) 

(rejecting claim of plain error where defendant identified no 

“binding precedent supporting” his position). Nor has he

offered any plausible counterexample to the proposition that 

assault by strangulation requires the use of physical force.6 We 

 6 At oral argument, McMillian offered two examples to 

support his contention that assault by strangulation can be 

committed without the use of physical force. His first 

hypothetical involves erotic asphyxiation, a practice in which 

the supply of oxygen to the brain is restricted to increase 

sexual gratification. McMillian’s second hypothetical posits a 

police officer who uses a chokehold to subdue a suspect, but 

recklessly employs excessive force in doing so. McMillian’s 

hypotheticals both fail, however, because they involve the 

intentional application — i.e., the use — of physical force.
18

are therefore satisfied that McMillian has failed plain error 

review.7

C.

In his final contention of error, McMillian faults the 

district court for failing to adequately explain the sentence it

imposed. In particular, McMillian insists that the court did 

not “address [his] nonfrivolous arguments for a lower sentence.” 

See Br. of Appellant 26.8

A district court sentencing a defendant for a supervised

release violation must “adequately explain [its] chosen 

sentence.” See United States v. Thompson, 595 F.3d 544, 547

(4th Cir. 2010) (internal quotation marks omitted). The failure

to do so constitutes procedural error. See id. The court’s 

 7 McMillian also contends that the offense of assault by 

strangulation is not punishable by more than a year in prison. 

That contention is without merit. Since the North Carolina 

legislature enacted the Justice Reinvestment Act in 2011, all 

North Carolina felony offenses — including assault by 

strangulation — are subject to a maximum term of imprisonment of 

at least thirteen months, “regardless of offense class or prior 

record level.” See United States v. Barlow, 811 F.3d 133, 137 

(4th Cir. 2015).

8 We are satisfied that McMillian preserved his contention 

that the district court failed to adequately address his 

arguments for a lower sentence. See United States v. Lynn, 592 

F.3d 572, 578 (4th Cir. 2010) (“By drawing arguments from § 3553 

for a sentence different than the one ultimately imposed, an 

aggrieved party sufficiently alerts the district court of its 

responsibility to render an individualized explanation 

addressing those arguments, and thus preserves its claim.”).
19

explanation, however, “need not be as detailed or specific when 

imposing a revocation sentence as it must be when imposing a 

post-conviction sentence.” Id. (internal quotation marks 

omitted). Moreover, as we recognized in United States v. 

Montes-Pineda, “in determining whether there has been an 

adequate explanation, we do not evaluate a court’s sentencing 

statements in a vacuum.” See 445 F.3d 375, 381 (4th Cir. 2006). 

Rather, “[t]he context surrounding a district court’s 

explanation may imbue it with enough content for us to evaluate 

both whether the court considered the § 3553(a) factors and 

whether it did so properly.” Id.

Before it imposed the challenged sentence, the district 

court expressly acknowledged McMillian’s contention that, apart 

from the incidents underlying the revocation motion, he had 

complied with the conditions of his release. See J.A. 92 

(“That’s correct, it was a year and a half into his supervision 

and Officer Cooper said he hadn’t had any problems while he had 

a job, etc.”). The court then emphasized, however, that 

McMillian had “a long history of this type of conduct . . . in 

his past.” Id. Thus, the record demonstrates that the court 

considered and rejected McMillian’s arguments for a lower 

sentence, deeming his history of violent conduct to be of 

greater significance. Moreover, other aspects of the record 

confirm that McMillian’s history of violence was a primary 
20

concern of the court throughout the hearing. See id. at 87 

(reciting McMillian’s criminal history, including numerous 

assault convictions); id. at 96 (recommending that McMillian “be 

exposed to the most intense anger management training and 

education possible” while in prison). Accordingly, we also

reject McMillian’s contention that the court inadequately 

explained its chosen sentence.

III.

Pursuant to the foregoing, we reject McMillian’s 

contentions of error and affirm the judgment.

AFFIRMED