UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5131
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JAMES ARTHUR LEMON, a/k/a Bobby,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Fox, Senior
District Judge. (CR-94-97)
Submitted: June 23, 2005 Decided: June 28, 2005
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Jane E. Pearce, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Christine Witcover
Dean, Assistant United States Attorney, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
James Arthur Lemon appeals his sentence imposed upon a
violation of his term of supervised release from his previous
conviction on drug-related charges. Lemon was ultimately sentenced
to 132 months’ imprisonment on the underlying conviction, after the
sentence was reduced twice by the district court based upon Lemon’s
substantial assistance. He now challenges the district court’s
imposition of a sentence of thirty-six months’ imprisonment for his
admitted violations of the terms of his supervised release.
According to the undisputed facts, Lemon was released
from custody, and his term of supervised release began on June 3,
2004. At his first visit with his probation officer, on June 7,
2004, Lemon admitted to smoking marijuana two days after he had
been released from prison. Subsequent urinalysis testing revealed
that Lemon had used cocaine, and Lemon admitted to being addicted
to cocaine. Lemon later failed to attend treatment, failed to
provide urine screens as directed, and failed to report for weekend
jail confinement, ordered by the district court as a result of his
violations. After the district court ordered Lemon to be placed in
a community confinement center, Lemon tested positive for cocaine
use, failed to report for work, and failed a breathalyzer test.
Lemon’s federal probation officer thereafter filed a
motion to revoke Lemon’s supervised release. In addition to
Lemon’s admission that he had violated the rules of the community
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corrections center, Lemon, by counsel, requested treatment for his
crack cocaine addiction, as well as evaluation and treatment for
depression. The district court stated that it had considered the
policy statement on revocation contained in Chapter Seven of the
sentencing guidelines, and while the applicable guideline range
called for a sentence of eight to fourteen months, it determined
that Lemon’s sentence should be thirty-six months’ imprisonment to
ensure that Lemon could receive intensive substance abuse treatment
while incarcerated. On appeal, Lemon contends that the sentence
imposed by the district court was unreasonable, given the
applicable sentencing guidelines policy statement.
This court reviews a sentence imposed by a district court
as a consequence of a supervised release violation for abuse of
discretion. United States v. Davis, 53 F.3d 638, 642-43 (4th Cir.
1995). The sentencing ranges provided by U.S. Sentencing
Guidelines Manual § 7B1.4, p.s., are purely advisory and do not
bind the sentencing court. Davis, 53 F.3d at 672 (supervised
release revocation proceeding); United States v. Denard, 24 F.3d
599, 602 (4th Cir. 1994) (probation revocation proceeding). In
addition, the guidelines commentary establishes the propriety of a
sentence above the recommended range where, as here, the original
sentence was the result of a downward departure. USSG § 7B1.4,
p.s., cmt. n.4.
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We find, given that the district court here considered
the guidelines prior to imposing sentence and imposed the thirty-
six month sentence to ensure that Lemon could receive the intensive
substance abuse treatment he clearly needed and requested, the
district court’s sentence does not constitute an abuse of
discretion.*
Accordingly, we affirm Lemon’s conviction and sentence.
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
*
We also note that the sentence Lemon received on the
supervised release violation was still below his original guideline
sentencing range, and the supervised release violation was based on
a number of drug-related events, which began within days of Lemon’s
release from custody.
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