UNITED STATES of America, Plaintiff-Appellee, v. Willie BARRETT, Defendant-Appellant, 691 F. App'x 722

Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Willie Barrett appeals the district court’s judgment revoking his supervised release for his prior federal crack cocaine conviction and sentencing him to 40 months in prison. Barrett’s sole appellate contention challenges the district court’s classification of his prior crack offense as a Class A felony. According to Barrett, in light of changes to the federal sentencing regime effectuated by the Fair Sentencing Act of 2010 (FSA), see Pub. L.

No. 111-220, 124 Stat. 2372 (2010), his prior crack offense should have been classified a Class B felony. This, in turn, would reduce the policy statement range applicable to Barrett’s supervised release revocation, as well as the statutory maximum term of imprisonment that the court could have imposed upon revoking his supervised release. For the reasons that follow, we reject this contention and affirm the revocation judgment. We review Barrett’s argument for plain error only because he did not press it in the district court, see Henderson v.

United States, 568 U.S. 266, 133 S.Ct. 1121, 1124-25, 185 L.Ed.2d 85 (2013), and did not argue for a different sentence, see United States v. Thompson, 595 F.3d 544, 546 (4th Cir. 2010) (noting that request for different sentence precludes plain error review). To establish plain error, the defendant must show “(1) there is an error, (2) the error is plain, and (3) the error affects substantial rights.” Henderson, 133 S.Ct. at 1126 (alteration and internal quotation marks omitted).

Even if these requirements are met, we will notice the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. at 1126-27 (alteration and internal quotation marks omitted). When reviewing a revocation sentence, we will affirm if the sentence is within the statutory limits and not plainly unreasonable. United States v. Crudup, 461 F.3d 433, 438-40 (4th Cir. 2006).

Having fully considered Barrett’s argument, we conclude that the district court did not commit error, plain or otherwise, in sentencing Barrett pursuant to the law in effect at the time of his 2005 original sentencing. First, the FSA does not apply retroactively to defendants like Barrett who were originally sentenced prior to the FSA’s August 3, 2010 effective date. Dor sey v. United States, 567 U.S. 260, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012); United States v. Bullard, 645 F.3d 237, 248-49 (4th Cir. 2011).

Second, the imposition of a new sentence upon revocation of supervised release relates back to the first offense for which the defendant was convicted, Johnson v. United States, 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000), and the revocation sentence is limited “to the duration of the term of supervised release originally imposed,” id. at 712, 120 S.Ct. 1795.

As the Third Circuit has explained, because a supervised release revocation sentence relates to the original offense of conviction, the district court “look[s] to the underlying offense as it existed at the time of [the defendant’s] original sentencing” when determining the appropriate revocation sentence. United States v. Turlington, 696 F.3d 425, 427-28 (3d Cir. 2012); accord United States v. Johnson, 786 F.3d 241, 244-46 (2d Cir.), cert. denied, — U.S.-, 136 S.Ct. 202, 193 L.Ed.2d 211 (2015).

In light of these authorities, we conclude that, in determining the sentencing range for his supervised release violation, the district court properly treated Barrett’s prior crack offense as a Class A felony, as it was under the statutory scheme prior to enactment of the FSA. Accordingly, we affirm the revocation judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process.

AFFIRMED The Supreme Court opined in Dorsey that "the Fair Sentencing Act’s new, lower mandatory mínimums ... apply to the post-Act sentencing of pre-Act offenders.” Dorsey, 132 S.Ct. at 2335. Barrett was sentenced for his original offense in October 2005, well before the FSA took effect.