United States v. Canady ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4263
ERIC RYNARD CANADY,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James H. Michael, Jr., Senior District Judge.
(CR-90-128)
Submitted: January 20, 1998
Decided: March 17, 1998
Before WILKINS, HAMILTON, and LUTTIG, Circuit Judges.
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Affirmed and remanded by unpublished per curiam opinion.
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COUNSEL
Robert P. Dwoskin, Charlottesville, Virginia, for Appellant. Robert P.
Crouch, Jr., United States Attorney, Donald R. Wolthuis, Assistant
United States Attorney, Colleen M. McFeely, Third-Year Law Stu-
dent, Roanoke, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Eric Rynard Canady appeals the fifteen-month sentence he
received upon revocation of his supervised release. He contends that
the district court departed upward without justification when it
imposed a sentence in excess of the 4-10-month range recommended
in the Chapter 7 policy statement, see USSG§ 7B1.4, p.s.1 We affirm
the sentence but remand for correction of a clerical error in the judg-
ment order.
Canady began serving a four-year term of supervised release in
February 1996. On three occasions in November and December 1996,
Canady tested positive for cocaine. He also missed one scheduled test
and failed to pay for electronic monitoring fees as required. After
hearing testimony from Canady and his probation officer at the revo-
cation hearing, the district court found that Canady's violation of the
conditions of his supervised release mandated revocation of super-
vised release. The court accepted the government's recommendation
that Canady receive a sentence in excess of a year so that he could
receive additional intensive drug treatment in a federal institution.
The court imposed a fifteen-month sentence. Canady contends that
the sentence was a departure above the 4-10-month range applicable
under USSG § 7B1.4. He argues that his need for drug treatment was
not an adequate basis for departure and that there was no alternative
reason to depart upward.
In sentencing a defendant whose supervised release has been
revoked, the district court must consider the policy statements set out
in Chapter 7 of the U.S. Sentencing Guidelines Manual. See 18
U.S.C.A. §§ 3553(a)(4)(B), 3583(e) (West Supp. 1997). However, the
Chapter 7 policy statements are not binding. See United States v.
Davis, 53 F.3d 638, 642 (4th Cir. 1995). Once the court has consid-
ered them, it has the discretion to impose a sentence outside the
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1 U.S. Sentencing Guidelines Manual (1990). Canady was originally
sentenced in August 1991. The revocation hearing took place in March
1997.
2
ranges provided there. Id. at 642-43.2 Therefore, in this case, the court
did not depart when it imposed a sentence of more than ten months,
and Canady's claim that the court improperly departed to afford him
additional drug treatment is without merit. For the same reason, Cana-
dy's second claim--that there was no other adequate reason to depart
--also fails.3
The district court orally pronounced a sentence of fifteen months,
but the written judgment order imposes a prison term of twelve
months. When the oral and written sentence conflict, the oral sentence
governs. See Rakes v. United States, 309 F.2d 686, 687-88 (4th Cir.
1962); see also United States v. Daddino, 5 F.3d 262, 266 & n.5 (7th
Cir. 1993) (collecting cases). Therefore, we remand the case to permit
the district court to correct the judgment order. See Fed. R. Crim. P.
36.
Accordingly, the sentence imposed is affirmed and the case is
remanded solely for correction of the clerical error in the judgment
order. 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 AND REMANDED
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2 The court was aware that USSG§ 7B1.4 provided for a maximum
sentence of ten months because the government specifically requested a
sentence above the range set out in Chapter 7.
3 Although Canady does not contest the revocation, he points out in his
brief that § 3583(d) gives the court discretion to modify the defendant's
conditions of supervised release, rather than revoking his supervised
release for illegal possession of a controlled substance pursuant to
§ 3583(g), when the violation consists of a failed drug test. See United
States v. Pierce, ___ F.3d ___, 1997 WL 786922, at *2 (8th Cir. Dec. 24,
1997) (remanding for resentencing because alternative not considered).
However, in this circuit, proof that a defendant intentionally used a con-
trolled substance is sufficient to establish possession of a controlled sub-
stance within the meaning of § 3583(g). See United States v. Battle, 993
F.2d 49, 50 (4th Cir. 1993).
3