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 1996-07

United States v. Kato ( 1996 )


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  •                IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-41024
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID KATO,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. C-90-CR-73-1
- - - - - - - - - -
June 26, 1996
Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
David Kato appeals the sentence imposed by the district
court upon revocation of his term of supervised release.   Kato
contends that the 24-month sentence is illegal because it exceeds
the applicable range established by the policy statements in
Chapter 7 of the U.S. Sentencing Guidelines.   Kato also contends
that policy statements in Chapter 7 of the Guidelines are binding
and that the district court failed to provide adequate reasons
*
Pursuant to Local Rule 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that this opinion should not be published and is not precedent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 Local Rule
47.5.4.
No. 95-41024
- 2 -
for departing upward from the Guideline range.     This court has
held that the policy statements in Chapter 7 of the Guidelines
are advisory only.     United States v. Escamilla,
    70 F.3d 835 
    (5th
Cir. 1995); United States v. Mathena,
    23 F.3d 87
    , 93 (5th Cir.
1994).    Section 3553(a)(4)(B) of Title 18 of the United States
Code provides that district courts must consider the policy
statements; it does not provide that district courts are bound by
them.
    Id. See 18 
    U.S.C. § 3553(a)(4)(B)(1994).   Because the
policy statements are advisory only, a district court need not
give notice of its departure.
    Mathena, 23 F.3d at 93 
    n.13.
Kato’s sentence was not unlawful as it was within the
statutory maximum upon revocation of supervised release for a
defendant whose underlying offense was a Class D felony.      See 18
U.S.C. § 3583(e)(3); see also
    Mathena, 23 F.3d at 94
    .      Kato’s
sentence was not “plainly unreasonable” because the district
court determined that Kato’s violations indicated he rejected all
attempts to supervise him during his period of release.
Kato’s appeal is without arguable merit and it thus
frivolous.     Howard v. King,
    707 F.2d 215
    , 219-20 (5th Cir. 1983).
Because this appeal is frivolous, it is DISMISSED.     5th Cir.
R. 42.2.
APPEAL DISMISSED.