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


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 03-2959
    ___________
    United States of America,                *
    *
    Appellee,                  *
    * Appeal from the United States
    v.                                 * District Court for the
    * Northern District of Iowa
    Jerry Gary,                              *
    *    [UNPUBLISHED]
    Appellant.                 *
    ___________
    Submitted: August 3, 2004
    Filed: August 18, 2004
    ___________
    Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
    ___________
    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.
    ______________________________
    -2-
    

Document Info

Docket Number: 03-2959

Citation Numbers: 104 F. App'x 614

Filed Date: 8/18/2004

Precedential Status: Non-Precedential

Modified Date: 1/12/2023