United States v. Bailey ( 1998 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.
    No. 97-4992
    WILLIAM M. JACKSON BAILEY, a/k/a
    Troy,
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of West Virginia, at Martinsburg.
    Robert Earl Maxwell, Senior District Judge.
    (CR-93-98)
    Submitted: June 9, 1998
    Decided: July 24, 1998
    Before MURNAGHAN, WILKINS, and MOTZ, Circuit Judges.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    Dorwin J. Wolfe, Elkins, West Virginia, for Appellant. William D.
    Wilmoth, United States Attorney, Sam G. Nazzaro, Assistant United
    States Attorney, Wheeling, West Virginia, for Appellee.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    OPINION
    PER CURIAM:
    Appellant William McKinley Jackson Bailey appeals from the
    sixty-month sentence he received after the district court revoked his
    term of supervised release. He alleges that the court erred by impos-
    ing a sentence in excess of the sentencing range set out by the policy
    statements in Chapter 7 of the Sentencing Guidelines.1 Bailey also
    alleges that the district court erroneously sentenced him to the maxi-
    mum term of imprisonment under 
    18 U.S.C. § 3583
     (1994). Finding
    no error, we affirm.
    Bailey was originally convicted pursuant to his guilty plea to one
    count of conspiracy to possess with intent to distribute and to distrib-
    ute crack cocaine, and his sentence included a five-year term of super-
    vised release. Shortly after beginning his term of supervised release,
    Bailey's probation officer filed a petition to revoke his release, alleg-
    ing that Bailey sold crack cocaine to a confidential informant, failed
    to report to the probation officer as ordered, and stole money from his
    father. During the revocation hearing, Bailey also admitted to smok-
    ing marijuana and crack cocaine while on supervised release.2 The
    district court considered the sentencing tables in Chapter 7, but sen-
    tenced Bailey to the statutory maximum under § 3583(e).
    Because Bailey did not object to the sentence during the hearing,
    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 always have been
    non-binding, advisory guides to the district courts in supervised
    release revocation proceedings." United States v. Davis, 
    53 F.3d 638
    ,
    642 (4th Cir. 1995). Here, we find that the district court properly con-
    sidered the guidelines and exercised its considerable discretion in
    imposing a sentence in excess of the sentencing range set out in the
    Chapter 7 policy statements.
    _________________________________________________________________
    1 U.S. Sentencing Guidelines Manual § 7B1.4 (1997).
    2 Bailey admitted to the charges of failure to report during the revoca-
    tion hearing, but denied the other charges.
    2
    Bailey's assertions concerning the imposition of a sixty-month sen-
    tence is without merit. Pursuant to § 3583(e)(3), the district court was
    authorized to sentence Bailey to serve in prison all or part of the origi-
    nal term of supervised release, which in this case was five years. Bai-
    ley alleges that the court should not have considered the alleged drug
    distributions because he denied those charges. We disagree. The stat-
    ute expressly states that the court need only find that a defendant vio-
    lated a condition of his supervised release by a preponderance of the
    evidence, and we find that the Government met this burden.3 More-
    over, under the statute, only one violation is needed to justify the
    maximum sentence, and Bailey admitted to two such violations. Since
    the sentence imposed was within the limits contained in the statute,
    we find that the district court's decision was not clearly erroneous.
    Accordingly, we affirm the sentence imposed by the district court.
    Bailey's unopposed motion to submit the case for consideration on
    the briefs is granted. We dispense with oral argument because the
    facts and legal contentions are adequately presented in the material
    before the court and argument would not aid the decisional process.
    AFFIRMED
    _________________________________________________________________
    3 Bailey was under indictment for these charges in state court. In addi-
    tion, evidence was presented showing that Bailey sold crack cocaine to
    a confidential informant. We find that the probation officer's petition put
    Bailey on notice that these charges would be used against him.
    3
    

Document Info

Docket Number: 97-4992

Filed Date: 7/24/1998

Precedential Status: Non-Precedential

Modified Date: 4/18/2021