United States v. Neal ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 96-4074
KENT NEAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-92-231)
Submitted: July 23, 1996
Decided: September 12, 1996
Before HALL, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assis-
tant Federal Public Defender, Charleston, West Virginia, for Appel-
lant. Rebecca A. Betts, United States Attorney, Monica K. Schwartz,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Kent Neal pled guilty to distributing cocaine base in violation of
21 U.S.C. § 841(a)(1) (1988). His final sentence was thirty-seven
months imprisonment followed by a thirty-six month term of super-
vised release. His supervised release began on May 12, 1995.
On October 30, 1995, Neal appeared before the district court for a
supervised release revocation hearing. The revocation petition
alleged, and Neal admitted, that he engaged in disorderly conduct,
resisting arrest, domestic battery, obstructing justice, and the exces-
sive use of alcohol. The district court found that Neal had violated the
conditions of his supervised release and placed him on home confine-
ment for eight months as an additional condition of his supervised
release.
On December 27, 1995, Neal's probation officer filed a second
revocation petition alleging that Neal was arrested on December 25
and charged with committing a crime, and that Neal used excessive
alcohol on December 25. At his revocation hearing, Neal did not con-
test the charged violations of his supervised release. The district court
found that Neal was guilty of a Grade C violation and his criminal
history category was VI. Thus, the court found that his sentencing
guideline range was eight to fourteen months, with a statutory maxi-
mum of twenty-four months.
Neal argued that because he had only committed a Grade C viola-
tion his conduct did not warrant the statutory maximum sentence.
However, the court, sua sponte, noted that it had received information
from Neal's probation officer that Neal had used physical violence
and made threats against his girlfriend. Notice that the district court
was aware of this information had not been provided to Neal prior to
the revocation hearing as required pursuant to Fed. R. Civ. P.
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32.1(a)(2). Neal's counsel argued that he was not prepared to defend
Neal with regard to this information. Nonetheless, the court allowed
the Government to call Neal's probation officer to testify about Neal's
violent conduct.
The district court revoked Neal's supervised release and sentenced
him to twenty-four months incarceration, the statutory maximum, pur-
suant to 18 U.S.C.A. § 3583(e)(3) (West Supp. 1996). Neal timely
appealed.
On appeal, Neal claims that the district court improperly imposed
the statutory maximum sentence of twenty-four months based on
findings that Neal engaged in acts of physical violence against his
girlfriend. However, neither the revocation petition nor the accompa-
nying memorandum contained any allegations as to this conduct.
Thus, Neal alleges that he was denied the notice of charges and dis-
closure of evidence required by Fed. R. Crim. P. 32.1(a)(2)(A), (B)
when the court allowed the probation officer to testify to instances of
physical violence by Neal.
Even assuming the court violated the Rule 32.1 notice requirement
at Neal's revocation hearing, he has not established prejudice. The
sentencing guidelines provide that a court may revoke supervised
release upon a finding of a Grade C violation. United States Sentenc-
ing Commission, Guidelines Manual, § 7B1.3, p.s. (Nov. 1995). Neal
admitted committing a Grade C violation of his supervised release.
Section 3583(e)(3) provides that a defendant whose term of super-
vised release is revoked may be required to serve no more than two
years in prison if the offense that resulted in the term of supervised
release is a class C or D felony, which includes Neal's offense. See
18 U.S.C.A. § 3559(a)(3) (West Supp. 1996); 21 U.S.C. § 841(a)(1)
(1988).
The guideline range provided in Chapter Seven is eight to fourteen
months for a Grade C violation and a Criminal History Category VI.
USSG § 7B1.4, p.s. However, this court has joined a number of other
circuits which have held that, in connection with revocation of super-
vised 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 (4th Cir. 1995); United States v. Hill, 48 F.3d 2283
(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). Moreover, this court
has held that a sentence of imprisonment imposed upon revocation of
supervised release which is above the Chapter Seven range is not a
departure, and therefore, the rules governing guideline departures are
inapplicable. United States v. Denard, 24 F.3d 599, 602 (4th Cir.
1994).
Neal does not show that the district court placed any special reli-
ance on the probation officer's testimony about Neal's physical vio-
lence towards his girlfriend to sentence him to twenty-four months
incarceration. Assuming that the court should not have allowed this
testimony, Neal's numerous other violations were sufficient to sup-
port the district court's order. See United States v. Cates, 402 F.2d
473, 474 (4th Cir. 1968). The court's sentence reflected the serious
nature of Neal's violations. The sentence was also appropriate consid-
ering that the court had previously exercised leniency when Neal vio-
lated the conditions of his supervised release by placing him on home
confinement instead of revoking his supervised release. The district
court did not, therefore, abuse its discretion in revoking Neal's super-
vised release and sentencing him to twenty-four months incarceration.
See United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992) (stat-
ing standard of review).
Accordingly, we affirm the district court's order. 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
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