United States v. Anthony Ontiveros ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 96-3769
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Anthony Phillip Ontiveros, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 28, 1997
Filed: March 6, 1997
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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
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PER CURIAM.
In December 1995, the district court1 sentenced Anthony
Phillip Ontiveros to time served and four years supervised release
for conspiring to distribute cocaine and marijuana. Approximately
two months after Ontiveros began his supervised release, the
probation office petitioned the court to revoke his supervised
release because he had violated his release conditions by failing
to submit to a drug test and committing felony larceny. At the
revocation hearing, Ontiveros admitted the violations. The court
revoked Ontiveros’s supervised release, departed from the
Guidelines range of 8 to 14 months, and sentenced him to the
1
The Honorable Joseph E. Stevens, Jr., United States District
Judge for the Western District of Missouri.
statutory maximum 36 months imprisonment. Ontiveros appeals, and
we affirm.
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The Guidelines provisions contained in Chapter Seven are
advisory and non-binding, and the district court is free to depart
from the Guidelines range when, in its considered discretion, such
departure is warranted. See United States v. Carr, 66 F.3d 981,
983 (8th Cir. 1995) (per curiam). We review for an abuse of
discretion a sentence imposed upon revocation of supervised
release. See United States v. Grimes, 54 F.3d 489, 492 (8th Cir.
1995).
We disagree with Ontiveros’s assertion that the court departed
from the Guidelines range because it did not want to impose an
additional term of supervised release, and incorrectly thought the
imposition of supervised release was mandatory if the court imposed
a sentence within the Guidelines range. See 18 U.S.C. § 3583(h)
(supervised release is discretionary); U.S. Sentencing Guidelines
Manual § 7B1.3(g)(2), p.s. (1995) (same). We believe the court’s
statements at the revocation hearing indicate the court imposed the
statutory maximum because it believed that the circumstances
warranted a stiffer penalty than only a sentence within the
Guidelines range, and that an additional term of supervised release
following a term of imprisonment within the Guidelines range would
be futile given Ontiveros’s extensive criminal history and the
short elapse of time between Ontiveros’s release from custody and
his return to criminal activity. Furthermore, we conclude the
court did not abuse its discretion in imposing a three-year
sentence. Cf. United States v. Smeathers, 930 F.2d 18, 18-19 (8th
Cir. 1991) (per curiam) (concluding no abuse of discretion in
imposition of sentence where, inter alia, district court believed
sentence was appropriate to deter defendant from further criminal
conduct and protect public from further crimes).
Accordingly, the judgment of the district court is affirmed.
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A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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