The Honorab le Joseph E. Stevens, Jr., United States District 1 Judge for the Western District of Missouri.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3769

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Anthony Phillip Ontiveros, * * [UNPUBLISHED] Appellant. *

___________ Submitted: February 28, 1997 Filed: March 6, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ PER CURIAM.

In December 1995, the district court sentenced Anthon y 1 Phillip Ontiveros to time serv ed and four years supervised release for conspiring to distribute c ocaine and marijuana. Approximately two mo nths after Ontiveros began his supervised release, th e pr obationoffice petitioned the court to revoke his supervise d release because he had violated his release conditions by failing to submit to a drug test and committing felony larceny. At th e revocation hearing, Ontiveros admitted the violations. The court revoked Ontiveros’s supervised release, departed from th e Guideli nes range of 8 to 14 months, and sentenced him to th e-2-

statutory maximum 36 months imprisonment. Ontiveros appeals, and we affirm.-3-

The Guidelines provisions contained in Chapter Seven ar e advisory and non-binding, and the district court is free to depart from the Guidelines range when , in its considered discretion, such departur e is warranted. See United States v. Carr , 66 F.3d 981 , 983 (8 th Cir. 1995) (per curiam). We review for an abuse o f discr etiona sentence imposed upon revocation of supervise d release. See United States v. Grimes , 54 F.3d 489, 492 (8th Cir. 1995). We disagree with Ontiveros’s assertion that the court depart ed fr omthe Guidelines range because it did not want to impose a n additional term of supervised release, and incorrectly thought the imposition of supervised release was mandatory if the court imposed a senten ce 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 impo sed the sta tutorymaximum because it believed that the circumstance s warranted a stiffer penalty than only a sentence within th e Guidelines range, and that an additional term of supervised release following a term of imprisonme nt within the Guidelines range would be futile given Ontiveros’s extensive criminal history and th e short elapse of time between Ontiveros’s release from custody and his return to criminal activity. Furthermore, we conclude th e court did not abuse its discretion in imposing a three-yea r sentence. Cf. United States v . Smeathers , 930 F.2d 18, 18-19 (8th Cir
. 1991) (per curiam) (concluding no abuse of discretion i n 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.-4-

A true copy.

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