United States v. Jerry Gary , 104 F. App'x 614 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2959
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa
Jerry Gary, *
* [UNPUBLISHED]
Appellant. *
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Submitted: August 3, 2004
Filed: August 18, 2004
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Jerry Gary appeals from the final judgment entered in the District Court1 for the
Northern District of Iowa upon revocation of his supervised release. The district
court sentenced Gary to 24 months imprisonment and 1 year supervised release. For
reversal, Gary argues that the district court abused its discretion in sentencing him
above the suggested Guidelines range so that he could complete the Bureau of Prisons
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
(BOP) drug-treatment program and that the district court improperly delegated its
authority to the BOP to decide whether Gary will be provided drug treatment in
prison. For the reasons discussed below, we affirm the judgment of the district court.
Upon careful review, we reject Gary’s arguments. The length of his sentence
was not an abuse of discretion, because the policy statements in Chapter 7 of the
Guidelines are not binding on the district court, see United States v. Touche, 323 F.3d
1105, 1107 (8th Cir. 2003), and the court based its decision upon relevant sentencing
factors, see 18 U.S.C. § 3553(a). Cf. United States v. Shaw, 180 F.3d 920, 923 (8th
Cir. 1999) (per curiam) (revocation sentence of 24 months imprisonment and 3 years
supervised release, which exceeded suggested Guidelines range, was not abuse of
discretion where defendant repeatedly violated terms of supervision, and court
desired that defendant receive long-term intensive treatment for drug and alcohol
abuse and mental health treatment in highly structured environment). The district
court did not improperly delegate its authority because the BOP has sole authority to
determine which prisoners will participate in the drug-treatment program. See United
States v. Jackson, 70 F.3d 874, 877-78 (6th Cir. 1995).
Accordingly, we affirm.
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