United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS December 16, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10393
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DENNIE ROBERT MATHEWS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:99-CR-253-ALL-R
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Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Dennie Mathews appeals the revocation of his supervised
release and the 12-month sentence imposed by the district court.
He argues that the district court’s judgment should be vacated and
his case remanded because the district court erred in classifying
his supervised-release violation as a Grade B violation under the
policy statements set forth by the Sentencing Commission, when it
1
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that this opinion should not be published and is not precedent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.
1
was only a Grade C violation. Mathews contends that the district
court thus considered the incorrect sentence available and an
inapplicable sentencing range, in violation of 18 U.S.C. § 3583(e).
Mathews preserved error at the revocation hearing with respect
to the district court’s classification. The court’s classification
of Mathews’s supervised release violation is a factual finding that
is reviewed for clear error. See United States v. Huerta, 182 F.3d
361, 364 (5th Cir. 1999).
The record reflects that the district court committed error at
Mathews’s revocation hearing in concluding that the supervised-
release violation was a Grade B violation in light of U.S.S.G. §
7B1.1(a), p.s., and the applicable Texas statutes relating to
Mathews’s violations. Although the district court is required
under 18 U.S.C. § 3553(a)(4) to consider the applicable policy
statements, this court has held that the policy statements relating
to revocation of supervised release and resentencing after
revocation are advisory only and non-binding. United States v.
Mathena, 23 F.3d 87, 92-93 (5th Cir. 1994). Because there are no
applicable Sentencing Guidelines, this court will uphold a
defendant’s “revocation and sentence unless it is in violation of
law or is plainly unreasonable.” United States v. Teran, 98 F.3d
831, 836 (5th Cir. 1996).
The district court’s revocation of Mathews’s supervised
release and its imposition of a 12-month sentence were not in
violation of law, but were in accordance with the governing
2
statutory authority, 18 U.S.C. § 3583(e)(3). See Teran, 98 F.3d at
836. Further, because Mathews does not argue that his sentence is
plainly unreasonable, the sentence is upheld despite the district
court’s classification error. See Teran, 98 F.3d at 836.
Accordingly, the judgment of the district court is AFFIRMED.
3