United States v. Russell ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4648
DARRYL LEWIS RUSSELL,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, District Judge.
(CR-91-57)
Submitted: February 26, 2003
Decided: March 31, 2003
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
L. Brad Braford, L. BRAD BRAFORD, P.C., Roanoke, Virginia, for
Appellant. John L. Brownlee, United States Attorney, Anthony P.
Giorno, Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. RUSSELL
OPINION
PER CURIAM:
Darryl Lewis Russell appeals the district court’s judgment revoking
his supervised release and imposing a thirty-six month prison term.
On appeal, Russell argues the district court erred in its factual find-
ings, and improperly applied the policy statements contained in U.S.
Sentencing Guidelines Manual § 7B1.1, p.s. (2001). Finding no
reversible error, we affirm.
We review the factual findings of the district court for clear error,
and its legal interpretation of the Sentencing Guidelines de novo.
United States v. Dawkins, 202 F.3d 711, 714 (4th Cir. 2000). Further-
more, we review the district court’s order imposing a sentence after
revocation for abuse of discretion. United States v. Davis, 53 F.3d
638, 642-43 (4th Cir. 1995). The district court may revoke a defen-
dant’s term of supervised release if it finds by a preponderance of the
evidence that he violated the terms of release. 18 U.S.C.A.
§ 3583(e)(3) (West 2000).
Russell’s primary argument on appeal is that the district court erred
in finding that the conduct underlying his revocation proceedings con-
stituted a Grade A violation, rather than a lesser Grade C violation.
After a review of the record, we conclude the district court was pre-
sented with sufficient evidence to find by a preponderance of the evi-
dence that Russell’s actual conduct constituted a Class A violation
under the guidelines.
Russell also contends that the district court improperly applied the
Chapter 7 policy statements of the Sentencing Guidelines causing him
to receive a longer term of imprisonment than was justified by his
conduct. The Sentencing Guidelines policy statements applicable to
violations of supervised release include a table of sentencing ranges.
See USSG § 7B1.4(a). This court has held that the Chapter 7 policy
statements are not binding on the courts, but are advisory in nature.
United States v. Davis, 53 F.3d 638, 640-41 (4th Cir. 1995). Once a
district court considers Chapter 7 policy statements, the court is then
free to exercise its discretion to reject the suggested sentence and
UNITED STATES v. RUSSELL 3
impose the statutorily authorized sentence it deems appropriate. Id. at
642-43.
Here, the district court found by a preponderance of the evidence
that Russell’s actual conduct constituted a Class A violation of the
terms of his supervised release, and with Russell’s criminal history
category of V, the recommended guidelines range of imprisonment
for Russell was thirty to thirty-seven months. See USSG § 7B1.4(a).
Because Russell was sentenced within the recommended guidelines
range, and because the district court was aware that Chapter 7 policy
statements are non-binding, we find the district court properly applied
the Sentencing Guidelines in imposing Russell’s sentence.
We therefore affirm the revocation of Russell’s supervised release
term and his thirty-six month sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED