The Honorable Joseph E. Stevens, Jr., United States District 1

Judge for the Western District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-3769

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Anthony Phillip Ontiveros, *

* [UNPUBLISHED]

Appellant. *

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 Submitted: February 28, 1997

 Filed: March 6, 1997

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Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

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PER CURIAM.

In December 1995, the district court sentenced Anthony

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Phillip Ontiveros to time served and four years supervised release

for conspiring to distribute cocaine and marijuana. Approximately

two months after Ontiveros began his supervised release, the

probation office petitioned the court to revoke his supervised

release because he had violated his release conditions by failing

to submit to a drug test and committing felony larceny. At the

revocation hearing, Ontiveros admitted the violations. The court

revoked Ontiveros’s supervised release, departed from the

Guidelines range of 8 to 14 months, and sentenced him to the
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statutory maximum 36 months imprisonment. Ontiveros appeals, and

we affirm.
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The Guidelines provisions contained in Chapter Seven are

advisory and non-binding, and the district court is free to depart

from the Guidelines range when, in its considered discretion, such

departure is warranted. See United States v. Carr, 66 F.3d 981,

983 (8th Cir. 1995) (per curiam). We review for an abuse of

discretion a sentence imposed upon revocation of supervised

release. See United States v. Grimes, 54 F.3d 489, 492 (8th Cir.

1995).

We disagree with Ontiveros’s assertion that the court departed

from the Guidelines range because it did not want to impose an

additional term of supervised release, and incorrectly thought the

imposition of supervised release was mandatory if the court imposed

a sentence within the Guidelines range. See 18 U.S.C. § 3583(h)

(supervised release is discretionary); U.S. Sentencing Guidelines

Manual § 7B1.3(g)(2), p.s. (1995) (same). We believe the court’s

statements at the revocation hearing indicate the court imposed the

statutory maximum because it believed that the circumstances

warranted a stiffer penalty than only a sentence within the

Guidelines range, and that an additional term of supervised release

following a term of imprisonment within the Guidelines range would

be futile given Ontiveros’s extensive criminal history and the

short elapse of time between Ontiveros’s release from custody and

his return to criminal activity. Furthermore, we conclude the

court did not abuse its discretion in imposing a three-year

sentence. Cf. United States v. Smeathers, 930 F.2d 18, 18-19 (8th

Cir. 1991) (per curiam) (concluding no abuse of discretion in

imposition of sentence where, inter alia, district court believed

sentence was appropriate to deter defendant from further criminal

conduct and protect public from further crimes).

Accordingly, the judgment of the district court is affirmed.
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A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.