IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10217
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES C. NOWDEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:96-CR-85-1
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November 3, 2000
Before REAVLEY, JOLLY and JONES, Circuit Judges.
PER CURIAM:*
Charles Cleveland Nowden appeals the three-year sentence
imposed by the district court after it found that he had violated
four conditions of his supervised release. Nowden argues that
the district court committed reversible error at sentencing by
failing to consider the applicable sentencing guidelines and
policy statements in determining his sentence and that the
sentence which resulted from an upward departure from the
guidelines is plainly unreasonable. Because Nowden did not raise
*
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that this opinion should not be published and is not precedent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. 00-10217
-2-
these arguments in the district court, review is for plain error
only. See FED. R. CRIM. P. 52(b).
In sentencing a defendant following the revocation of his
supervised release, a district court is required to consider, but
is not bound by, the policy statements contained in Chapter 7 of
the sentencing guidelines. See United States v. Mathena, 23 F.3d
87, 93 (5th Cir. 1994). Our review of the record reveals that
the district court considered, yet rejected, the range of
imprisonment suggested by the policy statements. The district
court sentenced Nowden to three years’ imprisonment, which did
not exceed the maximum term of imprisonment authorized under
§ 3583(e)(3). Thus, the sentence was lawful.
Nowden’s argument that his sentence represents an upward
departure from the guidelines is unavailing. A sentence which
diverges from advisory policy statements is not a departure.
Mathena, 23 F.3d at 94 n.13. In light of the number and nature
of violations committed by Nowden, the district court
specifically found a need to impose a sentence that would serve
as a deterrent to further criminal activity by Nowden and as
punishment for his actions. As the district court was within its
discretion in considering these factors, the sentence cannot be
said to be plainly unreasonable. See 18 U.S.C. §§ 3583(e),
§ 3552(a).
The district court did not err, plainly or otherwise, in
sentencing Nowden to three years’ imprisonment following the
revocation of his supervised release.
AFFIRMED.