United States v. Kato

Opinion

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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.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