United States v. Testerman ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4243
STEVE TESTERMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Bluefield.
David A. Faber, District Judge.
(CR-91-393)
Submitted: September 2, 1997
Decided: November 5, 1997
Before WILKINS, NIEMEYER, and WILLIAMS, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
Hunt L. Charach, Federal Public Defender, Mary Lou Newberger,
First Assistant Federal Public Defender, Charleston, West Virginia,
for Appellant. Rebecca A. Betts, United States Attorney, Steven I.
Loew, 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Unpublished opinions are not binding precedent in this circuit.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:
Appellant Steve Testerman appeals the twenty-four month sentence
he received after the district court revoked his term of supervised
release. He alleges that the court committed plain error by imposing
a sentence in excess of the sentencing range set out by the policy
statements in Chapter 7 of the Sentencing Guidelines,* because the
policy statements were made binding after the 1994 amendments to
18 U.S.C.A. § 3553 (West 1985 & Supp. 1997). Finding no plain
error, we affirm.
Testerman was originally convicted of one count of conspiracy to
possess with intent to distribute dilaudid, and his sentence included
a three-year term of supervised release. While on supervised release,
Testerman admitted to his probation officer that he used drugs, and
two subsequent urinalysis tests confirmed this admission. During the
revocation hearing, the district court calculated Testerman's sentence
pursuant to USSG §§ 7B1.1, 7B1.4, and also under 18 U.S.C.
§ 3583(e) (1994). Testerman did not object to these calculations. The
district court considered the policy statements in Chapter 7 of the
Guidelines, but chose to impose the maximum sentence under
§ 3583(e). Again, Testerman did not object to the sentence.
Because Testerman did not object to the sentence during the hear-
ing, we review for plain error, and we find no such error here. See
Fed. R. Crim. P. 52(b); United States v. Olano , 507 U.S. 725, 732-37
(1993). Chapter 7 policy statements "are now and have always been
non-binding, advisory guides to district courts in supervised release
revocation proceedings." United States v. Davis, 53 F.3d 638, 642
(4th Cir. 1995). While Davis dealt with pre-amendment application of
the policy statements, this court made clear its position that the policy
_________________________________________________________________
*U.S. Sentencing Guidelines Manual (1995).
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statements were also not binding after the 1994 amendments to
§ 3553(a). See id. at 639 n.1 (for cases to which the 1994 amendments
apply, district courts are merely to "consider" the Chapter 7 policy
statements).
Testerman argues that the statements in Davis are mere dicta and
that the Chapter 7 policy statements are binding. Only the Ninth Cir-
cuit has adopted this view. See United States v. Plunkett, 94 F.3d 517,
519 (9th Cir. 1996). Other circuits have rejected this position. See
United States v. Cohen, 99 F.3d 69, 71 (2d Cir. 1996), cert. denied,
___ U.S. ___, 65 U.S.L.W. 3753 (U.S. May 12, 1997) (No. 96-7589);
United States v. Hofierka, 83 F.3d 357, 360-61 (11th Cir.), modified
on other grounds, 92 F.3d 1108 (11th Cir. 1996), cert. denied, ___
U.S. ___, 65 U.S.L.W. 3466 (U.S. Jan. 6, 1997) (No. 96-6923);
United States v. Escamilla, 70 F.3d 835 (5th Cir. 1995), cert. denied,
___ U.S. ___, 64 U.S.L.W. 3657 (U.S. Apr. 1, 1996) (No. 95-8171);
United States v. West, 59 F.3d 32, 34-37 (6th Cir.), cert. denied, ___
U.S. ___, 64 U.S.L.W. 3348 (U.S. Nov. 13, 1995) (No. 95-6370).
Since the amendments to § 3553 did not expressly make the policy
statements binding, and given the weight of authority from other cir-
cuits on this issue, we conclude that the district court did not commit
plain error in imposing a sentence in excess of the sentencing range
set out in the Chapter 7 policy statements. Accordingly, we affirm the
sentence imposed by the district court. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the material before the court and argument would not aid the deci-
sional process.
AFFIRMED
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