UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4074

KENT NEAL,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-92-231)

Submitted: July 23, 1996

Decided: September 12, 1996

Before HALL, MICHAEL, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Monica K. Schwartz,

Assistant United States Attorney, Charleston, West Virginia, for

Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Kent Neal pled guilty to distributing cocaine base in violation of

21 U.S.C. § 841(a)(1) (1988). His final sentence was thirty-seven

months imprisonment followed by a thirty-six month term of supervised release. His supervised release began on May 12, 1995.

On October 30, 1995, Neal appeared before the district court for a

supervised release revocation hearing. The revocation petition

alleged, and Neal admitted, that he engaged in disorderly conduct,

resisting arrest, domestic battery, obstructing justice, and the excessive use of alcohol. The district court found that Neal had violated the

conditions of his supervised release and placed him on home confinement for eight months as an additional condition of his supervised

release.

On December 27, 1995, Neal's probation officer filed a second

revocation petition alleging that Neal was arrested on December 25

and charged with committing a crime, and that Neal used excessive

alcohol on December 25. At his revocation hearing, Neal did not contest the charged violations of his supervised release. The district court

found that Neal was guilty of a Grade C violation and his criminal

history category was VI. Thus, the court found that his sentencing

guideline range was eight to fourteen months, with a statutory maximum of twenty-four months.

Neal argued that because he had only committed a Grade C violation his conduct did not warrant the statutory maximum sentence.

However, the court, sua sponte, noted that it had received information

from Neal's probation officer that Neal had used physical violence

and made threats against his girlfriend. Notice that the district court

was aware of this information had not been provided to Neal prior to

the revocation hearing as required pursuant to Fed. R. Civ. P.

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32.1(a)(2). Neal's counsel argued that he was not prepared to defend

Neal with regard to this information. Nonetheless, the court allowed

the Government to call Neal's probation officer to testify about Neal's

violent conduct.

The district court revoked Neal's supervised release and sentenced

him to twenty-four months incarceration, the statutory maximum, pursuant to 18 U.S.C.A. § 3583(e)(3) (West Supp. 1996). Neal timely

appealed.

On appeal, Neal claims that the district court improperly imposed

the statutory maximum sentence of twenty-four months based on

findings that Neal engaged in acts of physical violence against his

girlfriend. However, neither the revocation petition nor the accompanying memorandum contained any allegations as to this conduct.

Thus, Neal alleges that he was denied the notice of charges and disclosure of evidence required by Fed. R. Crim. P. 32.1(a)(2)(A), (B)

when the court allowed the probation officer to testify to instances of

physical violence by Neal.

Even assuming the court violated the Rule 32.1 notice requirement

at Neal's revocation hearing, he has not established prejudice. The

sentencing guidelines provide that a court may revoke supervised

release upon a finding of a Grade C violation. United States Sentencing Commission, Guidelines Manual, § 7B1.3, p.s. (Nov. 1995). Neal

admitted committing a Grade C violation of his supervised release.

Section 3583(e)(3) provides that a defendant whose term of supervised release is revoked may be required to serve no more than two

years in prison if the offense that resulted in the term of supervised

release is a class C or D felony, which includes Neal's offense. See

18 U.S.C.A. § 3559(a)(3) (West Supp. 1996); 21 U.S.C. § 841(a)(1)

(1988).

The guideline range provided in Chapter Seven is eight to fourteen

months for a Grade C violation and a Criminal History Category VI.

USSG § 7B1.4, p.s. However, this court has joined a number of other

circuits which have held that, in connection with revocation of supervised release, the guidelines are advisory only and the district court

is not bound to impose a sentence within the range. United States v.

Davis, 53 F.3d 638 (4th Cir. 1995); United States v. Hill, 48 F.3d 228

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(7th Cir. 1995); United States v. Sparks, 19 F.3d 1099, 1101 n. 3 (6th

Cir. 1994); United States v. Thompson, 976 F.2d 1380, 1381 (11th

Cir. 1992); United States v. Bermudez, 974 F.2d 12, 14 (2d Cir.

1992); United States v. Headrick, 963 F.2d 777, 780 (5th Cir. 1992);

United States v. Lee, 957 F.2d 770, 773 (10th Cir. 1992); United

States v. Fallin, 946 F.2d 57, 58 (8th Cir. 1991). Moreover, this court

has held that a sentence of imprisonment imposed upon revocation of

supervised release which is above the Chapter Seven range is not a

departure, and therefore, the rules governing guideline departures are

inapplicable. United States v. Denard, 24 F.3d 599, 602 (4th Cir.

1994).

Neal does not show that the district court placed any special reliance on the probation officer's testimony about Neal's physical violence towards his girlfriend to sentence him to twenty-four months

incarceration. Assuming that the court should not have allowed this

testimony, Neal's numerous other violations were sufficient to support the district court's order. See United States v. Cates, 402 F.2d

473, 474 (4th Cir. 1968). The court's sentence reflected the serious

nature of Neal's violations. The sentence was also appropriate considering that the court had previously exercised leniency when Neal violated the conditions of his supervised release by placing him on home

confinement instead of revoking his supervised release. The district

court did not, therefore, abuse its discretion in revoking Neal's supervised release and sentencing him to twenty-four months incarceration.

See United States v. Copley, 978 F.2d 829, 831 (4th Cir. 1992) (stating standard of review).

Accordingly, we affirm the district court's order. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

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