IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-11084
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RYAN OMAR WHEATON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:92-CR-60-A
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No. 96-11158
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTONIO BLADE MALANITINI,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:96-CR-050-A
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No. 96-11084
No. 96-11158
No. 96-11460
-2-
June 20, 1997
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No. 96-11460
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DOROTHY J. GAINEY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:94-CR-024-1-A
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Before SMITH, DUHE, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Defendants-appellants Ryan Omar Wheaton, Antonio Blade
Malanitini (a/k/a Malantini), and Dorothy J. Gainey appeal from
prison sentences imposed by the district court after it had
revoked their terms of supervised release, based on their
violation of conditions of their release. At their request, the
* Pursuant to Local Rule 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in Local Rule
47.5.4.
No. 96-11084
No. 96-11158
No. 96-11460
-3-
defendants’ appeals have been consolidated for appeal.
All three defendants contend that the district judge, in
sentencing them following the revocation of supervised release,
abused his discretion by applying a personal “policy” of
sentencing defendants to terms above the ranges listed in policy
statements in Chapter 7 of the Sentencing Guidelines. In support
of this claim, they call this court’s attention to other cases
before the same sentencing court that involve the imposition of
sentences after the revocation of supervised release. Because
this contention is raised by all three defendants for the first
time on appeal, it is reviewed only for plain error. See United
States v. Olano, 507 U.S. 725, 731-37 (1993); United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). We
have reviewed the briefs and the record and we perceive no plain
error.
The defendants also argue for the first time on appeal that
the policy statements in Chapter 7 of the Sentencing Guidelines
are mandatory upon sentencing courts when sentencing for
violations of supervised release, and that the sentencing court
in their cases failed to apply those statements. This court,
however, has already held that the Chapter 7 policy statements
are merely advisory. See United States v. Escamilla, 70 F.3d
835, 835 (5th Cir. 1995), cert. denied, 116 S. Ct. 1368 (1996);
see also Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th
No. 96-11084
No. 96-11158
No. 96-11460
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Cir. 1991) (one panel may not overrule the decision of a prior
panel in the absence of en banc consideration or superseding
decision of the Supreme Court).
Finally, defendant Malantini contends for the first time on
appeal that the sentencing court denied him his right to cross-
examine a Probation Officer on the issue whether he qualified for
an exception to the revocation of his supervised release.
Malantini has not shown plain error as to this claim. See
Calverley, 37 F.3d at 164.
The appellants’ motion for this court to take judicial
notice, construed as a motion to supplement the record, is
GRANTED.
AFFIRMED.