UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4208
DAVID LEE GERALD,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Patrick Michael Duffy, District Judge.
(CR-96-831)
Submitted: July 18, 2003
Decided: August 7, 2003
Before WILLIAMS, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
J. Robert Haley, Assistant Federal Public Defender, Charleston, South
Carolina, for Appellant. James Strom Thurmond, Jr., United States
Attorney, Sean Kittrell, Assistant United States Attorney, John
Charles Duane, Assistant United States Attorney, Charleston, South
Carolina, for Appellee.
2 UNITED STATES v. GERALD
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In 1997, David Ree Gerald pleaded guilty to bank robbery by
force, 18 U.S.C. § 2113(a) (2000). He was sentenced to forty-six
months in prison, to be followed by three years on supervised release.
In October 2002, Gerald was sentenced to "4 years suspended upon
the service of 87 days, time served and 3 years probation" for grand
larceny. In November 2002, Gerald’s probation officer filed an
amended petition to revoke Gerald’s supervised release. The petition
alleged that Gerald had violated several supervised release conditions,
including the condition that he not commit a crime.
At his revocation hearing, Gerald did not contest the allegations in
the petition. The district court found that Gerald had committed the
charged violations and revoked supervised release.
The court sentenced Gerald to twenty-four months in prison, with
no supervised release term to follow the sentence. Gerald timely
appealed. His attorney has filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), contending that the district court
erred when it imposed a sentence outside the range recommended by
the sentencing guidelines but stating that there are no meritorious
issues for appeal. Although Gerald was advised of his right to file a
pro se brief, he has not filed such a brief.
We review a sentence imposed upon the revocation of supervised
release for abuse of discretion. See United States v. Davis, 53 F.3d
638, 642 (4th Cir. 1995). We discern no abuse of discretion and
affirm.
Gerald did not contest the charged violations; thus, a preponder-
ance of the evidence established that he committed the supervised
UNITED STATES v. GERALD 3
release violations as alleged. The district court accordingly was statu-
torily authorized to "revoke . . . supervised release, and require the
defendant to serve in prison all or part of the term of supervised
release authorized by statute for the [original offense] . . . without
credit for time previously served on postrelease supervision." 18
U.S.C. § 3583(e)(3) (2000). If the original offense was a Class C fel-
ony, the maximum term that can be imposed upon revocation of
supervised release is two years. Id.
Because Gerald’s bank robbery conviction exposed him to a maxi-
mum sentence of twenty years, see 18 U.S.C. § 2113(a), the offense
is a Class C felony. See 18 U.S.C. § 3559(a)(3) (2000). After revok-
ing Gerald’s supervised release, the district court was statutorily
authorized to impose an active prison term of up to two years. See 18
U.S.C. § 3583(e)(3).
The sentencing guidelines suggest that Gerald, whose criminal his-
tory category was Category II and whose grand larceny conviction
constitutes a Grade B supervised release violation, should receive a
prison term of six to twelve months. See U.S. Sentencing Guidelines
Manual § 7B1.1(a)(2), p.s. (2002). However, "Chapter 7’s policy
statements are . . . non-binding, advisory guides to district courts in
supervised release proceedings." United States v. Davis, 53 F.3d at
642. Thus, a court is free to exercise its discretion and, upon revoca-
tion of supervised release, to sentence a defendant to imprisonment
of up to the statutory maximum allowable. Id. at 642-43.
Here, the district court concluded that Gerald, who has an extensive
criminal record largely tied to his abuse of drugs, required incarcera-
tion and intensive drug therapy while in prison. The court did not
abuse its discretion when it sentenced Gerald to twenty-four months
in prison. While exceeding the recommended guideline range, the
sentence equals the statutory maximum sentence that could have been
imposed. The sentence did not constitute an abuse of discretion.
We have reviewed the entire record and find no meritorious issues
for appeal. We therefore affirm. This court requires counsel to inform
his client, in writing, of his right to petition the Supreme Court of the
United States for further review. If the client requests that a petition
be filed, but counsel believes that such a petition would be frivolous,
4 UNITED STATES v. GERALD
then counsel may move in this court to withdraw from representation.
Counsel’s motion must state that a copy of the motion was served on
his client. 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