                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-4040


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

AARON POSLEY,

                  Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:08-cr-00295-LO-1)


Submitted:    October 9, 2009                 Decided:   November 13, 2009


Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and
Norman K. MOON, United States District Judge for the Western
District of Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Rachel S.
Martin, Assistant Federal Public Defender, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Alexandria, Virginia; Richard D. Kelley, REED
SMITH, LLP, Falls Church, Virginia, for Appellant.      Dana J.
Boente, United States Attorney, Inayat Delawala, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     In this appeal, the appellant, Aaron Posley, challenges a

special condition of his probation, namely, that he serve a six-

month     continuous    term    of     imprisonment,      which   was    imposed

following his conviction for driving while intoxicated (DUI) on

Pentagon property in Arlington, Virginia.                For the reasons that

follow, we affirm.



                                         I

     On    February     17,    2008,    Officer   Jason    Cummiskey    of   the

Pentagon Police Department conducted a traffic stop after he

observed    Posley     making    an     illegal   left     turn   on    Pentagon

property.     During the traffic stop, Officer Cummiskey determined

that Posley was intoxicated and arrested him.               After his arrest,

Posley failed a breath test, which measured his breath alcohol

concentration at .225 and .219, almost three times the legal

limit.

     Posley    was     cited    for    numerous   traffic    violations,     but

ultimately pled guilty to DUI and driving without an operator’s

license.     His conviction on the instant DUI offense represented

his fifth DUI conviction since 1998.

     On July 24, 2008, Posley was sentenced by a United States

Magistrate Judge.       Posley received a $40 fine for his conviction

of driving without an operator’s license, and that conviction is

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not at issue in this appeal.               Posley’s DUI conviction, 32 C.F.R.

§ 234.17(c)(1)(ii), was a Class B misdemeanor under federal law,

id. § 234.19, also known as a “petty offense.”                           18 U.S.C. § 19.

Class B misdemeanors are punishable by no more than six months’

imprisonment, id. §§ 3559(a)(7), 3581(b)(7), are not subject to

the imposition of supervised release, id. § 3583(b)(3), and are

not subject to application of the Sentencing Guidelines, U.S.

Sentencing      Guidelines        Manual    § 1B1.9.            The    magistrate      judge

sentenced Posley to two years of probation with several special

conditions,       including       participating          in     an    alcohol     education

program    as     directed    by    the     Probation          Office.        The    special

condition    at    issue     in    this    appeal        is    the    one    in   which    the

magistrate      judge   directed      that      Posley         serve    “six      months    in

prison.”    (J.A. 20).       According to the magistrate judge:

      I am going to protect the public from you.    You are
      going to kill somebody, but not for a period of six
      months.   I impose the maximum sentence.   I hope you
      get the treatment you need, but it is not going to be
      at the expense of the public.

Id.

      Posley appealed his sentence to the district court.                                   In

particular, he challenged his sentence on the basis that the

magistrate judge did not order that he serve the six months of

imprisonment      “during     nights,       weekends,          or    other   intervals      of

time,” as set forth in 18 U.S.C. § 3563(b)(10), which statutory

subsection      constitutes        one     of      the        twenty-three        enumerated

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discretionary conditions of probation that a court may impose in

addition to certain mandatory conditions.

      In     response,      the     government       presented    two       arguments.

First,      the    government      argued     that     18   U.S.C.       § 3561(a)(3)

authorized the magistrate judge to impose a six-month continuous

term of imprisonment on Posley at the same time he sentenced him

to   probation.        Alternatively,        the   government     argued      that   18

U.S.C. § 3563(b)’s catch-all provision, which broadly requires

that a defendant “satisfy such other conditions as the court may

impose,”      18   U.S.C.     § 3563(b)(22),       authorized      the      magistrate

judge to impose a six-month continuous term of imprisonment as a

special condition of probation.

      On December 23, 2008, in a memorandum opinion, the district

court      concluded   that       the   special    condition      of    a   six-month

continuous term of imprisonment was permitted under § 3563(b)’s

catch-all     provision.          In    so   concluding,    the    district     court

expressly did not reach the § 3561(a)(3) issue.

      On January 6, 2009, Posley filed a timely notice of appeal.

Two days later, he finished serving his six-month continuous

term of imprisonment.             Posley currently is serving his two-year

term of probation. *


      *
       We note that the present appeal is not moot even though
Posley has served the six-month continuous term of imprisonment.
Cf. Kitt v. United States, 138 F.2d 842, 843 (4th Cir. 1943)
(Continued)
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                                             II

     Posley contends that the magistrate judge erred when he

imposed as a condition of his probation a six-month continuous

term of imprisonment.           In so contending, Posley posits that the

district     court      erred    in        relying       on    § 3563(b)’s      catch-all

provision,    § 3563(b)(22),          to    uphold       the   special     condition   at

issue.

     We need not decide whether the district court’s reliance on

§ 3563(b)(22)      was    in    error,      as     any    error   here     is   harmless.

Unquestionably, the magistrate judge had the statutory authority

under § 3561(a)(3) to sentence Posley to a term of six months of

continuous imprisonment plus probation.                         See id. § 3561(a)(3)

(“A defendant who has been found guilty of an offense may be

sentenced     to    a    term    of    probation          unless--    . . .     (3)    the

defendant     is     sentenced        at     the     same      time   to    a   term   of

imprisonment for the same . . . offense that is not a petty

offense.”).        Critically, we do not have an over incarceration

problem in this case, because Posley has not served one day of

imprisonment over the six-month maximum term of imprisonment for




(holding that court of appeals is not limited to striking the
excess of a sentence beyond the maximum authorized by statute
and allowing valid portion to remain, but could remand the case
for an entirely new resentencing where that appeared to be the
wiser course).



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a DUI offense.          Moreover, there is no indication in the record

that Posley’s ultimate sentence would have been any different

had the magistrate judge believed that he could not have given

Posley    the    six-month    continuous       term   of    imprisonment    as    a

special condition of his probation.              Under these circumstances,

any error with regard to the catch-all provision is harmless.



                                        III

    For the reasons stated herein, the judgment of the district

court is affirmed.         We dispense with oral argument because the

facts    and    legal    contentions   are     adequately    presented     in    the

materials before the court and argument would not aid in the

decisional process.

                                                                         AFFIRMED




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