Biggs

MEMORANDUM *

Lamont Biggs appeals his sentence for violating the terms of his supervised release. Although we vacate the district *979 court’s finding that Biggs violated the condition of his supervised release to not commit a federal, state, or local crime, we affirm the sentence imposed based on Biggs’ actual conduct.

Biggs does not dispute that he violated the terms of supervised release at issue in Allegations 4 and 5 of the Petition for Warrant or Summons for Offender Under Supervision (“Petition”). Instead, Biggs argues that the district court erred by finding a violation based on Allegations 1 through 8 because, despite his Canadian conviction, he committed no federal, state, or local crime. This, Biggs argues, incorrectly resulted in sentencing based on a Grade A violation when a violation based solely on Allegations 4 and 5 would only have resulted in a Grade C violation and a lesser sentence. Biggs also argues that his right to due process was violated because he did not receive notice of the need to defend against his actual conduct.

At oral argument, and in a subsequent letter to the court dated February 9, 2009, the Government conceded that Biggs’ foreign…