UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
ALVIS TYRONE THOMPSON, A/K/A MICHAEL A. BLAIR, DEFENDANT-APPELLANT
PER CURIAM: This appeal presents the question of the weight a district judge must give to the United States Sentencing Commission’s policy statements relating to the revocation of supervised release. Specifically, do these policy statements constitute binding authority or are they merely advisory? Following the lead of the Third, Fifth, and Sixth Circuits, see United States v. Blackston, 940 F. 2d 877, 893 (3d Cir.), cert. denied, — U.S. -, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991); United States v. Headrick, 963 F. 2d 777 (5th Cir.1992); United States v. Cohen, 965 F. 2d 58 (6th Cir.1992), we hold that such policy statements are advisory. In this case, the appellant, while serving a three-year term of supervised release (imposed as part of his sentence for a Class D felony), tested positive for cocaine use, and the court revoked his supervised release. The Sentencing Commission’s policy statements designated appellant’s cocaine use a Grade C violation, see U.S.S.G. § 7B1.1(a)(3) p.s. (Nov. 1991), and, with a Criminal History Category V, his revocation range called for seven to thirteen months imprisonment. See U.S.S.G. § 7B1.4, p.s. The relevant statutory provisions, however, required the court to sentence appellant to prison for at least one year (one-third of his three-year term of supervised release), see 18 U.S.C. § 3583(g) (1986), and gave it the discretion to sentence him to prison for as much as two years, see 18 U.S.C. § 3583(e)(3) (Supp. 1990).
The district court considered the policy statement, but considered its upper limit (thirteen months imprisonment) inadequate under the circumstances. The court opted, instead, to sentence appellant to twenty-four months imprisonment, the maximum term authorized by section 3583(e)(3). We cannot say that, in doing so, the court abused its discretion.
Accordingly, its judgment is AFFIRMED.
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United States v. Dwaine Copeland, 20 F.3d 412 (11th Cir. 1994)…The district court revoked his release and sentenced him to eighteen months imprisonment. II. We review the district court’s conclusion that appellant violated the terms of his supervised release for abuse of discretion. United States v. Thompson, 976 F. 2d 1380, 1381 (11th Cir.1992). Appellant contends that the evidence introduced at the hearing was insufficient for the district court to conclude that he had sold cocaine. As the result of stipulations of the parties, the only issue before the district cou…
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United States v. Hofierka, 83 F.3d 357 (11th Cir. 1996)…that a court may follow when revoking probation or supervised release. See U.S.S.G. Ch. 7, Pt. A, intro. We have unequivocally held that the Chapter 7 policy statements are merely advisory, i.e., they are not binding. United States v. Thompson, 976 F. 2d 1380, 1381 (11th Cir.1992). Appellants argue that this holding has been undercut by two recent decisions of the Supreme Court: Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), and Williams v. United States, 503 U.S. 193, 11…1 / 2
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United States v. Rockwell, 984 F.2d 1112 (10th Cir. 1993)…nited States v. Kindred, 918 F. 2d 485, 487 [ & ] n. 3 (5th Cir.1990) (same; “Knowing use of drugs is akin to possession.”)); Blackston, 940 F. 2d at 883 (“evidence of drug use is undoubtedly probative of possession”); cf. United States v. Thompson, 976 F. 2d 1380, 1381 (11th Cir.1992) (§ 3583(e) and (g) applied without comment after offender tested positive for cocaine use); United States [*1115] v. Graves, 914 F. 2d 159, 161 (8th Cir.1990) (dictum equating use and possession); United States v. Granderson, 9…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Theophilus Blackston, 940 F.2d 877 (3d Cir. 1991)
- United States v. Headrick, 963 F.2d 777 (5th Cir. 1992)
- United States v. Cohen, 965 F.2d 58 (6th Cir. 1992)