UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5047
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CALVIN LAMONT MCFADYEN, a/k/a Nino,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (CR-95-83)
Submitted: April 20, 2005 Decided: May 17, 2005
Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Calvin Lamont McFadyen appeals from the district court’s
judgment revoking his supervised release and imposing a forty-two
month sentence. Because our review of the record discloses no
reversible error, we affirm the revocation of McFadyen’s supervised
release and the sentence imposed.
Based on McFadyen’s admission to a criminal association
violation, his no contest plea to a criminal conduct violation, and
the probation officer’s proffer of evidence, the district court
found that McFadyen violated the conditions of his supervision and
properly revoked his supervision. See 18 U.S.C.A. § 3583(e)(3)
(West Supp. 2004). McFadyen challenges the length of the sentence,
which exceeded the thirty-to-thirty-seven month range suggested by
the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual
§ 7B1.4(a) (1994). However, this range is not binding on the
sentencing court.* United States v. Davis, 53 F.3d 638, 640-41
(4th Cir. 1994). Indeed, a greater sentence may be warranted
where, as here, the original sentence was the result of a downward
departure. See USSG § 7B1.4, comment. (n.4). Because McFadyen
received a significant downward departure from his original
sentence, the district court’s decision to impose a sentence above
*
Because the Sentencing Guidelines relating to revocation of
supervised release have always been advisory, see U.S. Sentencing
Guidelines Manual Ch. 7, Pt. A, the sentence in this appeal is not
impacted by the decision in United States v. Booker, 125 S. Ct. 738
(2005).
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the range suggested in § 7B1.4(a) was reasonable. Additionally, we
note that the imprisonment and supervised release terms did not
exceed the maximum sentence that could be imposed on revocation.
See 18 U.S.C.A. § 3583(e)(3); Johnson v. United States, 529 U.S.
694, 702 (2000); United States v. Maxwell, 285 F.3d 336, 341 (4th
Cir. 2002). Accordingly, we affirm the district court’s judgment.
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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