IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50441
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DON CHRISTOPHER SIMS,
Defendant-Appellant.
- - - - - - - - - -
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-91-CR-169-1
- - - - - - - - - -
January 26, 1999
Before WISDOM, DUHE’, and DeMOSS, Circuit Judges.
PER CURIAM:*
Don Christopher Sims appeals the district court’s imposition
of a 36-month sentence following the revocation of his supervised
release. Sims contends that the 36-month sentence was plainly
unreasonable in view of his merely technical violations of his
supervised release. Sims’ supervised release was imposed as part
of his sentence for his conviction of possession of more than
five grams of cocaine base with intent to distribute in violation
of 21 U.S.C. § 841(a)(1). This offense is a Class B felony
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 5TH CIR.
R. 47.5.4.
No. 98-50441
-2-
because it is punishable by up to 40 years of imprisonment under
21 U.S.C. § 841(b)(1)(B)(iii). See 18 U.S.C. § 3559(a)(2). Upon
revocation of supervised release of a defendant who had been
convicted of a Class B felony, a defendant may be sentenced to a
prison term of up to 36 months. 18 U.S.C. § 3583(e)(3).
Therefore, the district court had the discretion to sentence Sims
to a term of up to 36 months of imprisonment. The applicable
guideline range of four to ten months in Chapter 7 of the United
States Sentencing Guidelines is advisory only. United States v.
Escamilla, 70 F.3d 835 (5th Cir. 1995). The district court
determined that a lesser term would be inadequate because Sims
continually violated the terms of his supervised release and
indicated to his probation officer that he was unwilling to
comply with the terms in the future. Further, § 7B1.4 of the
Guidelines provides that a court may depart upward in imposing a
sentence upon revocation of supervised release if the original
sentence was the result of a downward departure for substantial
assistance. See § 7B1.4, comment. (n.4). In the instant case,
the Government filed two separate motions for downward departures
based on Sims’ substantial assistance, and the district court
granted both motions and reduced Sims’ sentence. Sims has not
shown that the district court’s imposition of a 36-month sentence
following the revocation of his supervised release was plainly
unreasonable. United States v. Rodriguez, 23 F.3d 919, 920 (5th
Cir. 1994).
AFFIRMED.