United States v. Cornelison , 79 F. App'x 2 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2003
Charles R. Fulbruge III
Clerk
No. 03-50442
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EDWARD DONOVAN CORNELISON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-98-CR-118-1
--------------------
Before KING, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Edward Donovan Cornelison appeals his sentence following the
revocation of his supervised release. His sole contention is
that the district court erred when it did not sentence him to the
low end of the Guideline range.
With respect to imprisonment after violation of supervised
release, the Guidelines Manual sets forth “policy statements
only.” See Guidelines Manual, Chapter 7, Pt. A, ¶ 1. Thus, this
court will uphold Cornelison’s sentence unless it is in violation
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-50442
-2-
of law or plainly unreasonable. United States v. Pena, 125 F.3d
285, 287 (5th Cir. 1997). The argument that a sentence
promulgated after probation revocation is in error because it is
not at the low end of the Guideline range is foreclosed by our
holding in United States v. Teran, 98 F.3d 831, 836 (5th Cir.
1996), in which we held that there are no applicable Guidelines
for sentencing after revocation of probation. See Pena, 125 F.3d
at 287.
The district court implicitly considered the factors set
forth in 18 U.S.C. § 3553(a). See Pena, 125 F.3d at 286-87.
Additionally, Cornelison’s original offense, possession with
intent to distribute amphetamine in violation of 21 U.S.C.
§ 841(a)(1), is a Class C felony. 18 U.S.C. § 3559(a)(3);
21 U.S.C. § 841(b)(1)(C). A defendant whose supervised release
term is revoked may not be required to serve more than two years
in prison if the charge that resulted in the term of supervised
release is a Class C felony. 18 U.S.C. § 3583(e)(3). Thus, the
24-month sentence did not exceed the maximum provided by statute
and was therefore legal. See Pena, 125 F.3d at 288.
AFFIRMED.