United States v. Andrews

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 96-4412
FREDDIE LEE ANDREWS, a/k/a Tank,
a/k/a Drew,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of North Carolina, at Fayetteville.
Terrence W. Boyle, District Judge.
(CR-92-75-BO)
Submitted: January 23, 1997
Decided: February 10, 1997
Before RUSSELL, WILKINS, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Robert H. Hale, Assistant Federal Public Defender, Raleigh, North
Carolina, for Appellant. Janice McKenzie Cole, United States Attor-
ney, John S. Bowler, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Freddie Lee Andrews appeals an order of the district court which
revoked his supervised release and sentenced him to the statutory
maximum of two years imprisonment. He contends that the district
court failed to consider the guideline range of 12-18 months provided
for his supervised release violations pursuant to USSG § 7B1.4(a),
p.s.* We affirm.
In sentencing a defendant for violations of supervised release, a
district court must consider the Chapter 7 policy statements, but is not
required to impose a sentence within the range set out there. United
States v. Davis, 53 F.3d 638, 639 n.1 (4th Cir. 1995). Here, the range
was clearly set out for the court in the probation officer's motion for
revocation. However, no one, including defense counsel, stated at the
revocation hearing that the Chapter 7 range was 12-18 months. Con-
sequently, Andrews argues that there is no evidence the court ever
considered the range before imposing a sentence of 24 months. He
agrees that his failure to bring the issue to the court's attention limits
our review to plain error. United States v. Olano, 507 U.S. 725, 734
(1993).
Andrews violated his supervised release principally by committing
an armed robbery. Before hearing evidence from one of the victims,
the court asked the probation officer for the total punishment that
could be imposed on Andrews, and specified, "I'm not talking guide-
lines, I mean total." At the end of the hearing, defense counsel asked
for a sentence within the guideline range. Just before imposing sen-
tence, the district court asked, "What's the punishment range?" The
government informed the court that the maximum term was two years
_________________________________________________________________
*United States Sentencing Commission, Guidelines Manual (Nov.
1995).
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and the court imposed a two-year sentence. The record discloses that
the court was clearly aware that the Chapter 7 range was less than the
statutory maximum, but implicitly considered and rejected any sen-
tence lower than the maximum. Therefore, we find no plain error.
The sentence is accordingly affirmed. 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
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