UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4395
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MICHAEL SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. James C. Fox, Senior
District Judge. (CR-95-57-F)
Submitted: December 21, 2005 Decided: January 25, 2006
Before WILKINSON, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Windy C. Venable, Research and
Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.
Whitney, United States Attorney, Anne M. Hayes, Jennifer May-
Parker, 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Unpublished opinions are not binding precedent in this circuit.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:
Michael Smith appeals from the district court's judgment
revoking his supervised release and imposing a twenty-four month
sentence. Because our review of the record discloses no reversible
error, we affirm the revocation of Smith's supervised release and
the sentence imposed.
Based on Smith's positive test result for cocaine and
admission to cocaine use, the district court found that Smith
violated the conditions of his supervision and properly revoked
supervised release. See 18 U.S.C.A. § 3583(e)(3) (West Supp.
2005). Smith challenges the length of the sentence, which exceeded
the four-to-ten month range suggested by the Sentencing Guidelines.
See U.S. Sentencing Guidelines Manual § 7B1.4(a) (2000). 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). 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). Because Smith received a
significant downward departure from his original sentence, and
based on the facts of this case, the district court's decision to
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impose a sentence above the range suggested in USSG § 7B1.4(a) was
reasonable, as was the sentence imposed.
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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