UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4190
MICHAEL D. PEFFER,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
Glen M. Williams, Senior District Judge.
(CR-89-159)
Submitted: October 26, 2000
Decided: November 6, 2000
Before WIDENER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Theodore Simon, Philadelphia, Pennsylvania, for Appellant. Robert P.
Crouch, Jr., United States Attorney, S. Randall Ramseyer, Assistant
United States Attorney, Abingdon, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. PEFFER
OPINION
PER CURIAM:
Michael D. Peffer appeals the district court’s order revoking his
term of supervised release and imposing a sentence of two years
imprisonment after he violated the conditions of his supervised
release by repeatedly using cocaine and associating with a drug
dealer. We affirm.
Raising the issue for the first time on appeal, Peffer argues that the
1994 amendments to 18 U.S.C.A. § 3553 (West 2000) made the
Chapter 7 policy statements of the federal sentencing guidelines bind-
ing on the sentencing court, and that the court therefore should have
sentenced him within the sentencing range of five to eleven months
applicable in his case. In United States v. Davis, 53 F.3d 638, 640-42
(4th Cir. 1995), this court held that the Chapter 7 policy statements
"are now and always have been non-binding, advisory guides to the
district courts in supervised release revocation proceedings." Davis,
53 F.3d at 642; see also United States v. George, 184 F.3d 1119, 1121
(9th Cir. 1999) (holding that Chapter 7 policy statements are not bind-
ing, rejecting contrary interpretation of United States v. Plunkett, 94
F.3d 517, 519 (9th Cir. 1996)).
Next, Peffer argues that the district court failed to adequately con-
sider the Chapter 7 sentencing range and the factors set out in § 3553.
Unless there is some reason to think otherwise, this court presumes
in non-departure cases that a district court properly considered the
pertinent statutory factors. See United States v. Johnson, 138 F.3d
115, 119 (4th Cir. 1998); Davis, 53 F.3d at 642 ("A court need not
engage in ritualistic incantation in order to establish its consideration
of a legal issue. It is sufficient if . . . the district court rules on issues
that have been fully presented for determination. Consideration is
implicit in the court’s ultimate ruling.").
Peffer also claims that the district court considered impermissible
factors, thereby violating the constitutional protections of due process,
equal protection, and the Fifth Amendment, when he rejected the rec-
ommendation of his New Jersey probation officer for drug treatment,
and opted for a custodial sentence. He bases his argument on the
UNITED STATES v. PEFFER 3
court’s statement that the differing recommendations from Peffer’s
probation officers in Virginia and in New Jersey concerning the
proper sanction for Peffer’s violations of supervised release reflected
in part "the difference in the mores of the place in which a person
lives." We do not find that the court’s statement violates any of the
constitutional protections cited by Peffer.
Finally, Peffer contends that his attorney rendered ineffective assis-
tance when he failed to argue that the Chapter 7 guidelines were bind-
ing, or that the court was required to consider the Chapter 7
sentencing range, and failed to request a downward departure.
Because the record does not conclusively establish that Peffer’s attor-
ney was ineffective, any such claim should be brought in a motion
pursuant to 28 U.S.C.A. § 2255 (West Supp. 2000). See United States
v. Smith, 62 F.3d 641, 650 (4th Cir. 1995).
We therefore affirm the district court’s order. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED