United States v. Anderson

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. No. 96-4355

SAMUEL WAYNE ANDERSON, Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Fox, Chief District Judge. (CR-93-11)

Submitted: September 20, 1996

Decided: October 7, 1996

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

G. Alan DuBois, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Janice McKenzie Cole, United States Attor- ney, Christine B. Hamilton, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). OPINION

PER CURIAM:

Samuel Wayne Anderson appeals as plainly unreasonable the 24- month sentence he received after his supervised release was revoked. We affirm.

Anderson was previously convicted of intent to defraud the United States in violation of 18 U.S.C.A. § 510(a)(1) (West Supp. 1996). In sentencing him, the district court departed upward pursuant to USSG § 4A1.3, p.s.* Anderson received a sentence of 37 months imprison- ment and 3 years of supervised release. On March 13, 1995, Anderson was released from custody. Because he intended to reside in Wil- mington, North Carolina, officials of the Bureau of Prisons took Anderson to the airport in Savannah, Georgia. He had arranged to fly to Wilmington and his probation officer was to meet him at the air- port. However, Anderson never boarded the plane. Instead, he went into the airport bar and began a two-week drinking binge. Only when he had used up most of his prison earnings did he start out on a bus toward Wilmington. He called his probation officer after he became stranded in Sumter, South Carolina, and eventually surrendered to law enforcement authorities there.

The district court revoked Anderson's supervised release because he failed to report to his probation officer. The sentencing range under USSG § 7B1.4, p.s. was 8-14 months. Both the government and the probation officer recommended a sentence above the range. Defense counsel argued that a sentence within the range was appropriate because Anderson's conduct was attributable to his alcoholism and because he did not commit any new crimes. The district court imposed the statutory maximum of 24 months.

Anderson argues on appeal that the sentence was plainly unreason- able because his violations were not "egregious." However, a sentence above the range is suggested in Application Note 2 to USSG § 7B1.4 when the original sentence included a departure pursuant to USSG _________________________________________________________________ *United States Sentencing Commission, Guidelines Manual (Nov. 1995).

2 § 4A1.3, as was the case here. Once the district court has considered the range set out in the policy statement, it is"free to exercise its informed discretion" in imposing sentence. United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995). We do not find that the 24-month sen- tence was plainly unreasonable.

We therefore affirm the sentence imposed. We dispense with oral argument because the facts and legal contentions are adequately pres- ented in the materials before the court and argument would not aid the decisional process.

AFFIRMED