United States v. Patrick Kent Morris

87 F.3d 1324 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Patrick Kent MORRIS, Defendant-Appellant. No. 95-10308. United States Court of Appeals, Ninth Circuit. Submitted May 16, 1996.* Decided June 20, 1996. Before: NORRIS, T.G. NELSON and TASHIMA, Circuit Judges. — 1 — MEMORANDUM** — 2 — Patrick Kent Morris appeals the sentence imposed under the sentencing guidelines following the district court's revocation of his four-year period of supervised release. — 3 — The district court found, and there is ample evidence to support the finding, that Morris had violated his period of supervised release by incurring a new arrest, failing to participate in drug and alcohol treatment, and testing positive for use of a controlled substance. — 4 — The Chapter Seven policy statement is not binding on the court. United States v. Forrester, 19 F.3d 482, 484 (9th Cir.1994); United States v. Plunkett, 74 F.3d 938 (9th Cir.1996). The district judge considered the recommended sentence of Chapter Seven and rejected the three to nine-month range as inadequate under the circumstances. The court may reject the suggested sentencing range after considering the policy statements. Id. Moreover, Application Note 4 of section 7B1.4 states: — 5 — Where the original sentence was the result of a downward departure (e.g., as a reward for substantial assistance), or a charge reduction that resulted in a sentence below the guideline range applicable to the defendant's underlying conduct, an upward departure may be warranted. — 6 — In this case, Morris's original sentence was the result of a downward departure. — 7 — The district court was within its statutory authority when it sentenced Morris to thirty months incarceration. The district court also considered the policy statements in Chapter Seven. Therefore, the district court's determination that an upward departure was warranted under the circumstances was, although severe, not an abuse of discretion. See Forrester, 19 F.3d at 484-85. — 8 — AFFIRMED. Footnotes [-s] * The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4 [-s-s] ** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3