[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
July 05, 2005
No. 05-10243
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 99-00434-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE KANAYA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(July 5, 2005)
Before BLACK, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Andre Kanaya was serving a five-year term of supervised release following
his conviction and imprisonment for embezzlement when the probation department
issued a petition for warrant for violations of supervised release. The petition
charged that Kanaya violated the conditions of his release by (1) his arrest for
aggravated assault; (2) his arrest for possession of a firearm by a convicted felon;
(3) the failure to make restitution payments; and (4) the failure to submit complete
monthly reports.
At the revocation hearing, Kanaya stated that he was prepared to admit the
violations regarding the failure to make restitution and to submit reports. He
further stated that he wished to admit the other violations, but that he could not do
so because other criminal charges were pending in connection with the arrests.
Coral Gables police officer Jane Rojas testified that she had interviewed and
arrested Kanaya after an incident based on a domestic dispute between Kanaya’s
cousin and another man in which Kanaya fired a gun at the victim. Rojas further
explained that Kanaya had admitted that he had the gun and he told police how he
had disposed of it.
Based on the testimony, the court concluded that Kanaya had violated all
four conditions of his release. Acknowledging that the guidelines gave an advisory
range of twelve to eighteen months imprisonment, the court inquired as to the
statutory limits. The probation officer explained that, because the original
2
underlying charge was a Class B felony, the court could impose up to three years,
which was the time remaining on Kanaya’s supervised release, and up to two years
of additional supervised release after imprisonment. The court determined that the
guidelines range was inadequate to reflect the harm and the need to protect the
public, and, therefore, sentenced Kanaya to three years imprisonment and an
additional two years supervised release. Kanaya objected to a sentence in excess
of the guidelines range on the ground that the court had not given notice of a
possible departure.
We review the district court’s decision to exceed the Chapter 7 sentencing
range for an abuse of discretion. United States v. Hofrieka, 83 F.3d 357, 362 (11th
Cir. 1996).
Chapter 7 of the Sentencing Guidelines contains policy statements which
provide ranges of imprisonment that a court may follow when revoking probation
or supervised release. See U.S.S.G. Ch. 7, Pt. A, intro. The Chapter 7 policy
statements are advisory only and are not binding on the sentencing court;
nevertheless, the sentencing court should consider the guidelines range in imposing
sentence. Hofrieka, 83 F.3d at 362.
There is no merit to Kanaya’s argument that the court was required to give
notice before sentencing him in excess of the guidelines range, as this claim is
3
foreclosed by this court’s decision in Hofrieka, which held that a sentence in
excess of the Chapter 7 guidelines range is not a departure that requires notice. See
83 F.3d at 362-63.
Here, Kanaya’s offense constituted a Class B felony, authorizing the district
court to impose a sentence of up to three years imprisonment. 18 U.S.C.
§ 3583(e)(3). The court considered the guidelines range and the factors set forth in
18 U.S.C. § 3553(a) and determined that the guidelines range was inadequate.
Because the district court was not required to give notice that it would sentence
Kanaya outside the guidelines range, and the sentence imposed was within the
statutory maximum, the district court did not abuse its discretion. Accordingly, we
AFFIRM.
4