United States v. Saulsgiver

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5976
ALFRED JOHN SAULSGIVER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Robert R. Merhige, Jr., Senior District Judge.
(CR-90-83)
Submitted: January 23, 1997
Decided: February 5, 1997
Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Mary F. Kelly, Richmond, Virginia, for Appellant. Helen F. Fahey,
United States Attorney, S. David Schiller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant appeals the district court's order revoking his supervised
release and sentencing him to twenty-four months in prison. Appel-
lant charges that the district court improperly departed upwardly from
the revocation guideline range and failed to consider his psychiatric
condition as a ground for downward departure. We find no error; con-
sequently, we affirm.
Appellant's guideline range at the time of his initial sentence was
forty-one to fifty-one months in prison. Later, the district court
granted the government's motion for a reduction in sentence due to
Appellant's substantial assistance to the government, and his sentence
was reduced to twenty months in prison. Appellant's twenty-four
month sentence for violating the terms of supervised release falls
below the maximum of the original guideline range and therefore is
not the result of an upward departure even though it exceeds the six
to twelve month range determined under the probation revocation
table in United States Sentencing Commission, Guidelines Manual,
§ 7B1.4 (Nov. 1994). United States v. Alli , 929 F.2d 995, 998-99 (4th
Cir. 1991). Moreover, this court has joined a number of other circuits
that have held that, in connection with revocation of supervised
release, the guidelines are advisory only and the district court is not
bound to impose a sentence within the range. United States v. Davis,
53 F.3d 638, 640 (4th Cir. 1995); United States v. Hill, 48 F.3d 228,
230-32 (7th Cir. 1995); United States v. Sparks , 19 F.3d 1099, 1101
n.3 (6th Cir. 1994); United States v. Thompson , 976 F.2d 1380, 1381
(11th Cir. 1992); United States v. Bermudez, 974 F.2d 12, 14 (2d Cir.
1992); United States v. Headrick, 963 F.2d 777, 780 (5th Cir. 1992);
United States v. Lee, 957 F.2d 770, 773 (10th Cir. 1992); United
States v. Fallin, 946 F.2d 57, 58 (8th Cir. 1991). To the extent that
Appellant argues that the district court should have awarded a down-
ward departure for his psychiatric condition, this court generally does
not review a district court's decision not to depart. United States v.
Bayerle, 898 F.2d 28, 30 (4th Cir. 1990).
For these reasons, we affirm the district court's order. We dispense
with oral argument because the facts and legal contentions are ade-
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quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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