United States v. Faulk

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________

No. 95-40761 Conference Calendar __________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BRYAN THOMAS FAULK,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. C-95-CR-003 - - - - - - - - - - April 16, 1996 Before DUHÉ, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Bryan Thomas Faulk appeals the revocation of his supervised

release. Faulk contends that his sentence was imposed in

violation of law because the district court sentenced him to a

term of imprisonment in excess of the applicable range set forth

in U.S.S.G. § 7B1.4, p.s. "[W]hen a court sentences a defendant

upon revoking his supervised release under [18 U.S.C.] § 3583(e),

the policy statements of Chapter 7 are advisory only." United

States v. Mathena, 23 F.3d 87, 93 (5th Cir. 1994); United States

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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. 95-40761 -2-

v. Escamilla, 70 F.3d 835, 835 (5th Cir. 1995), cert. denied,

1996 WL 106088 (U.S. Apr. 1, 1996) (No. 95-8171).

Faulk contends that the panel's decision in Escamilla is

contrary to prior Supreme Court precedent, the plain language of

the 1994 amendment to 18 U.S.C. § 3551(a)(4), the legislative

purpose of the Guidelines, and the clear intent of the

legislators. However, as only an "overriding Supreme Court

decision," a change in statutory law, or this court sitting en

banc may overrule a panel decision, Faulk cannot prevail on this

claim. United States v. Zuniga-Salinas, 952 F.2d 876, 877 (5th

Cir. 1992) (en banc).

AFFIRMED.