United States v. Kanode , 28 F. App'x 229 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4325
RICHARD A. KANODE,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-92-144)
Submitted: December 20, 2001
Decided: January 15, 2002
Before NIEMEYER and WILLIAMS, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
Mary Lou Newberger, Acting Federal Public Defender, Edward H.
Weis, First Assistant Federal Public Defender, Charleston, West Vir-
ginia, for Appellant. Charles T. Miller, United States Attorney, John
C. Parr, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
2 UNITED STATES v. KANODE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Richard A. Kanode appeals the district court’s order revoking his
supervised release and sentencing him to two years imprisonment.
Kanode’s attorney has filed a brief in accordance with Anders v. Cali-
fornia, 386 U.S. 738 (1967), raising one issue but asserting that, in his
view, there are no meritorious grounds for appeal. Kanode has been
notified of his right to file a pro se supplemental brief but has not filed
a brief. Finding that the issue raised by counsel is without merit and
that the record discloses no reversible error, we affirm the district
court’s order.
Shortly after he began serving a three-year term of supervised
release, Kanode was arrested and charged with battery of two men
and two police officers, public intoxication, resisting arrest, and flee-
ing from arrest. After hearing the government’s evidence at the revo-
cation hearing, the district court revoked supervised release and
imposed the statutory maximum sentence of twenty-four months. On
appeal, defense counsel argues that the district court plainly erred in
imposing a sentence that exceeded the guideline range of 8-14 months
recommended under Chapter 7 of the U.S. Sentencing Guidelines
Manual (2000). He suggests that the 1994 amendments to the Chapter
7 policy statements made them binding rather than advisory. Because
Kanode did not raise this issue in the district court, we review only
for plain error. United States v. Olano, 507 U.S. 725, 732-36 (1993).
We have held that the Chapter 7 policy statements are not binding.
United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995). Although
Davis dealt with the pre-amendment policy statements, we noted that
the amendments merely require the district court to "consider" the
Chapter 7 policy statements, which remain non-binding. See id. and
639 n.1. Other circuits have since expressly held that the 1994 amend-
ments did not make the Chapter 7 policy statements binding. See
UNITED STATES v. KANODE 3
United States v. George, 184 F.3d 1119, 1122 (9th Cir. 1999); United
States v. McClanahan, 136 F.3d 1146, 1149 (7th Cir. 1998); United
States v. Schwegel, 126 F.3d 551, 552 (3d Cir. 1997); United States
v. Cohen, 99 F.3d 69, 70-71 (2d Cir. 1996); United States v. Hofierka,
83 F.3d 357, 360-61 (11th Cir. 1996); United States v. Escamilla, 70
F.3d 835 (5th Cir. 1995); United States v. West, 59 F.3d 32, 34-37
(6th Cir. 1995).*
Pursuant to Anders, this court has reviewed the record for revers-
ible error and found none. We therefore affirm the district court’s
order revoking Kanode’s supervised release and imposing a two-year
term of imprisonment. This court requires that counsel inform his cli-
ent, in writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous,
then counsel may move this court for leave to withdraw from repre-
sentation. Counsel’s motion must state that a copy thereof was served
on the client. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
*Kanode claims the circuits that have ruled adversely to him on the
issue did not consider that, had Congress intended not to make the Chap-
ter 7 policy statements binding, it would have amended 18 U.S.C.A.
§ 3553(b) (West 2000) to refer only to § 3553(a)(4)(A) or to include only
the guidelines referred to in § 3553(a)(4)(B). We find this claim unper-
suasive.