United States v. Bailey

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 98-4363 KENNETH HAROLD BAILEY, JR., Defendant-Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, District Judge. (CR-89-2-F) Submitted: September 29, 1998 Decided: October 19, 1998 Before WILKINS and WILLIAMS, Circuit Judges, and HALL, Senior Circuit Judge. _________________________________________________________________ Affirmed by unpublished per curiam opinion. _________________________________________________________________ COUNSEL William Arthur Webb, Federal Public Defender, Edwin C. Walker, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Janice McKenzie Cole, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. _________________________________________________________________ Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). _________________________________________________________________ OPINION PER CURIAM: Kenneth Bailey, junior appeals from a district court judgment revoking his supervised release and ordering that he be imprisoned for a period of twenty-four months. Bailey was convicted pursuant to his guilty plea of conspiring to possess and distribute cocaine in 1989. He was sentenced to 51 months incarceration and 60 months supervised release. His term of supervised release began in July 1993. During the course of his supervision, he provided three urine speci- mens which tested positive for cocaine, and on three other occasions failed to provide urine samples. Because the use of controlled sub- stances constituted a violation of the terms of his supervised release, after these violations Bailey was placed in a community corrections center for drug treatment for a period of 120 days. He was released from the community center on November 28, 1997. In January and March of 1998, however, Bailey again tested positive for cocaine. Pursuant to his continued violations of the terms of his supervised release, his probation officer moved the court on March 26, 1998, for revocation of his supervised release. Bailey admitted to the violations. His violations constituted a Grade C violation which, when combined with his criminal history category of I, placed him within a guideline range of three to nine months under the Chapter 7 policy statements of the Sentencing Guidelines. See U.S. Sentencing Guidelines Manual, §§ 7B1.1, 7B1.4 (1995). At Bailey's revocation hearing, however, the district judge stated that he believed that the only way Bailey could overcome his drug problem was to receive substance abuse treatment on an in- house basis. Accordingly, he ordered that Bailey be confined at But- ner, North Carolina, for 24 months and receive substance abuse treat- ment. 2 On appeal, Bailey contends that the district court abused its discre- tion by imposing a sentence outside the guideline range where he only used cocaine twice over a two-month period, where he was willing to undergo in-patient drug treatment, and where he demonstrated that he had a good employment record and family support. We disagree. We have held that the Chapter 7 policy statements of the Sentencing Guidelines are non-binding, advisory guides in revocation proceed- ings. See United States v. Davis, 53 F.3d 638, 642 (4th Cir. 1995). While these advisory guides must be "considered," this does not require the district court to specifically discuss the suggested guide- lines. Rather, we may infer the district court's consideration where, as in this case, the probation officer's worksheet discussed the rele- vant policy statement. See id. We find that the imposition of a 24-month sentence was reasonable under the circumstances of this case. Although Bailey's last two vio- lations of his supervised release prompted the motion for revocation, there is no dispute that he committed several prior violations. Particu- larly in light of the fact that Bailey twice violated the terms of his release shortly after his release from the community center, the dis- trict court reasonably concluded that Bailey needed a more protracted period of in-house drug treatment. Moreover, because Bailey had been convicted of a Class A felony, the court could have imprisoned Bailey for as long as 60, rather than 24, months. See 18 U.S.C. § 3583(e)(3) (1994). Accordingly, the judgment order of the district court is affirmed. We dispense with oral argument because the facts and legal conten- tions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 3