United States v. Lester Erby

329 F. App'x 679

• Court: Court of Appeals for the Eighth Circuit
• Decided: August 3, 2009
• Docket: 09-1751
• Status: Unpublished

Opinion

PER CURIAM.

Lester D. Erby appeals the district court’s 1 decision to revoke his supervised release and the court’s imposition of a 10-month prison term as his revocation sentence.

Upon review, we conclude that the district court properly revoked Erby’s supervised release, see 18 U.S.C. § 3583(g)(4) (If defendant “as part of drug testing, tests positive for illegal controlled substances more than 3 times over the course of 1 year[,] the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment not to exceed the maximum term of imprisonment authorized under subsection (e)(3).”), and that the revocation sentence — which was imposed following the court’s consideration of the applicablé advisory Guidelines range and appropriate sentencing factors under 18 U.S.C. § 3553(a) — is not unreasonable, see U.S.S.G. § 7B1.4 (policy statement) (advisory Guidelines range for Grade C violation and Category IV criminal history is 6-12 months in prison); 18 U.S.C. § 3583(e) (specifying sentencing factors courts must consider in revocation decision); United States v. Nelson, 453 F.3d 1004, 1006 (8th Cir.2006) (appellate court reviews revocation sentence to determine whether it is unreasonable in relation to, inter alia, advisory Guidelines range and § 3553(a) factors); see also 18 U.S.C. § 3583(e)(3) (for Class C felony, maximum term of imprisonment upon revocation of supervised release is 2 years).

Accordingly, we affirm. We also grant counsel’s motion to withdraw, subject to counsel informing appellant about procedures for seeking rehearing and filing a petition for certiorari.

1 . The Honorable Dean Whipple, United States District Judge for the Western District of Missouri.