United States v. McMillan ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4473
JERRY ROGER MCMILLAN,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Robert D. Potter, Senior District Judge.
(CR-88-179-P)
Submitted: November 30, 2000
Decided: December 27, 2000
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
Affirmed in part and vacated and remanded in part by unpublished
per curiam opinion.
COUNSEL
Mark P. Foster, Jr., Charlotte, North Carolina, for Appellant. Brian L.
Whisler, OFFICE OF THE UNITED STATES ATTORNEY, Char-
lotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. MCMILLAN
OPINION
PER CURIAM:
Jerry Roger McMillan appeals the district court’s judgment impos-
ing a twenty-four month sentence for his violation of the terms of his
supervised release. McMillan suggests that the district court errone-
ously concluded that it lacked the discretion to impose a sentence
concurrent with McMillan’s pending term of imprisonment for his
state conviction. See USSG § 7B1.3(f), p.s. Although § 7B1.3(f) dic-
tates that any term of imprisonment imposed upon revocation of
supervised release be consecutive to any sentence the defendant is
serving, the Chapter 7 policy statements are not binding on the district
court. See United States v. Davis, 53 F.3d 638, 641-42 (4th Cir.
1995). As a result, contrary to the district court’s statements at sen-
tencing, the court was not bound to impose a consecutive sentence,
but could have in its discretion ordered a concurrent sentence under
the appropriate circumstances. See Koon v. United States, 518 U.S.
81, 92-95 (1996). The district court’s failure to recognize its own
power to depart downward renders the error reviewable on appeal.
See United States v. Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
Accordingly, we vacate McMillan’s sentence only and remand for
reconsideration of the sentence in light of the district court’s discre-
tion and the factors governing the possibility of a downward depar-
ture. See Koon, 518 U.S. at 95. The district court’s judgment is
affirmed in all other respects. 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 the decisional
process.
AFFIRMED IN PART AND VACATED
AND REMANDED IN PART