United States v. Wilson ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4303
LARRY LEE WILSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-97-186)
Submitted: September 20, 2001
Decided: October 9, 2001
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, Charleston,
West Virginia, for Appellant. Charles T. Miller, United States Attor-
ney, Michael L. Keller, Assistant United States Attorney, Charleston,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. WILSON
OPINION
PER CURIAM:
Larry Lee Wilson appeals the district court’s order sentencing him
to twenty-four months imprisonment after revoking his supervised
release. Wilson’s counsel has filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), raising one issue but representing
that, in his view, there are no meritorious issues for appeal. Wilson
has been notified of his right to file a pro se supplemental brief but
has not done so. Finding the issue raised by counsel is without merit
and discerning no other error in the record below, we affirm.
Wilson began serving a three-year term of supervised release in
July 1999. In November 2000, the probation officer filed a motion
describing Wilson’s violations of the conditions of supervised release
and requesting revocation. The district court continued Wilson’s revo-
cation hearing after Wilson admitted violating the conditions of his
supervised release by using marijuana and asked for the opportunity
to undergo drug rehabilitation treatment.
In February 2001, the probation officer again filed a motion
requesting revocation of Wilson’s supervised release after Wilson
tested positive for marijuana. The district court held a second revoca-
tion hearing. Wilson did not contest the charges but claimed he was
unable to obtain the drug treatment he required due to personnel prob-
lems at the treatment facility. The district court again continued Wil-
son’s revocation hearing and allowed him additional time to obtain
treatment. However, in April 2001, the probation officer again filed
a motion requesting revocation of Wilson’s supervised release after
Wilson tested positive for marijuana, hydromorphone, and hydroco-
done.
The district court held a third revocation hearing. Wilson did not
contest the charges and the district court sentenced Wilson to the stat-
utory maximum sentence of twenty-four months’ imprisonment. Wil-
son’s attorney made no objection to the sentence. Consequently, we
review for plain error only. See United States v. Olano, 507 U.S. 725,
732-37 (1993) (finding relief available only if error is plain, affects
UNITED STATES v. WILSON 3
substantial rights, and seriously affects the fairness, integrity, or pub-
lic reputation of judicial proceedings).
Wilson claims the district court erred in not sentencing him within
the range set out in the Chapter 7 policy statements of the United
States Sentencing Guidelines, because the Violent Crime Control &
Law Enforcement Act of 1994, No. 103-322, 108 Stat. 1796 (Sept.
13, 1994), made the Chapter 7 policy statements binding on sentenc-
ing courts. We have held, however, that the Chapter 7 policy state-
ments are not binding. See United States v. Davis, 53 F.3d 638, 642
(4th Cir. 1995). Although we addressed the pre-amendment policy
statements in Davis, we noted that, after enactment of the amend-
ments, "the district courts are required merely to ‘consider’ the Chap-
ter 7 policy statements," and that "Chapter 7 policy statements are
now and have always been non-binding, advisory guides to district
courts in supervised release revocation proceedings." Davis, 53 F.3d
at 639 n.1, 642.
Other circuits have since expressly held that the 1994 amendments
did not make the Chapter 7 policy statements binding. See United
States v. George, 184 F.3d 1119, 1122 (9th Cir. 1999); United States
v. McClanahan, 136 F.3d 1146, 1149 (7th Cir. 1998); United States
v. Shwegel, 126 F.3d 551, 552 (3d Cir. 1997); United States v. Cohen,
99 F.3d 69, 70-71 (2d Cir. 1996), cert. denied, 520 U.S. 1213 (1997);
United States v. Hofierka, 83 F.3d 357, 360-61 (11th Cir. 1996), cert.
denied, 519 U.S. 1071 (1997); United States v. Escamilla, 70 F.3d
835 (5th Cir. 1995), cert. denied, 517 U.S. 1127 (1996); United States
v. West, 59 F.3d 32, 34-37 (6th Cir.), cert. denied, 516 U.S. 980(1995). Therefore, we find the district court did not plainly err in sen-
tencing Wilson outside the Chapter 7 sentencing range.
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the sentence imposed
by the district court following revocation of Wilson’s supervised
release. This court requires that counsel inform his client, in writing,
of his right to petition the Supreme Court of the United States for fur-
ther review. If the client requests that a petition be filed, but counsel
believes such a petition would be frivolous, then counsel may move
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on the client. We
4 UNITED STATES v. WILSON
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED