UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4833
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARVIN BROWN,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-01-60)
Submitted: February 14, 2005 Decided: March 4, 2005
Before NIEMEYER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,
Appellate Counsel, Megan J. Schueler, Assistant Federal Public
Defender, Charleston, West Virginia, for Appellant. Charles T.
Miller, Acting United States Attorney, John J. Frail, Assistant
United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Marvin Brown appeals the district court’s order revoking
his supervised release and imposing a term of eighteen months of
imprisonment. Because we find no merit to Brown’s argument on
appeal, we affirm.
Brown asserts, as he did before the district court, that
the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct.
2531 (2004), invalidated the entire Sentencing Reform Act and
therefore the district court did not have authority to impose or
revoke any term of supervised release. In United States v. Booker,
125 S. Ct. 738 (2005), the Supreme Court applied the Blakely
decision to the federal sentencing guidelines and concluded that
the Sixth Amendment is violated when a district court imposes a
sentence under the Sentencing Guidelines that is greater than a
sentence based solely upon facts found by the jury. Booker, 125 S.
Ct. at 752-56. Rather than totally invalidating the Guidelines,
however, the Court held that the Guidelines are no longer binding
on the district courts, but are advisory only. To effectuate this
remedy, the Court severed two provisions of the Sentencing Reform
Act (18 U.S.C. § 3553(b)(1), requiring sentencing courts to impose
a sentence within the guideline range, and 18 U.S.C. § 3742(e),
setting forth standards of review on appeal). Sentencing courts
are now required to consider the applicable guideline range, but
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may “tailor the sentence in light of other statutory concerns
. . . .” Booker, 125 S. Ct. at 757.
We conclude that Booker provides Brown no grounds for
relief. First, contrary to Brown’s argument, the Supreme Court did
not totally invalidate the Sentencing Reform Act, but in fact left
the great majority of the Act’s provisions intact and legally
effective. Booker, 125 S. Ct. at 764 (“The remainder of the Act
‘function[s] independently.’”). More specifically, the provision
of the Act that governs supervised release, 18 U.S.C.A. § 3583
(West 2000 & Supp. 2004), was not affected by Booker. Booker, 125
S. Ct. at 764-68. Finally, the change effected by Booker--making
the Sentencing Guidelines merely advisory--was not a change in the
manner in which the Guidelines were applied to revocations of
supervised release pre-Booker. See United States v. Davis, 53 F.3d
638, 642 (4th Cir. 1995) (“Chapter 7’s policy statements are now
and have always been non-binding, advisory guides to district
courts in supervised release revocation proceedings.”).
We accordingly affirm the order of the district court
revoking Brown’s supervised release and imposing a term of eighteen
months of imprisonment. 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
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