UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-5008

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KEVIN JEMERSON, a/k/a Bucky,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Charleston. Joseph Robert Goodwin,

District Judge. (CR-01-60)

Submitted: May 4, 2005 Decided: May 31, 2005

Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

John G. Hackney, Jr., LAW OFFICE OF JOHN G. HACKNEY, JR.,

Charleston, West Virginia, for Appellant. Kasey Warner, United

States Attorney, John J. Frail, Assistant United States Attorney,

Charleston, West Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Kevin Jemerson appeals the district court’s order

revoking his term of supervised release and imposing a new period

of imprisonment. Jemerson was serving a three year term of

supervised release consequent to serving a fifty-one month sentence

for aiding and abetting cocaine base distribution. After Jemerson

admitted to violating the conditions of his supervised release by

testing positive for controlled substances on three occasions, the

district court revoked his term of supervised release and sentenced

him to fourteen months in prison. In this appeal, Jemerson

contends that the district court abused its discretion by failing

to consider the factors set forth in 18 U.S.C.A. § 3553(a) (West

2000 & Supp. 2004), specifically his need for substance abuse

treatment, when it revoked his supervised release and when it found

that his failed drug tests resulted in a Grade B violation.

Finding no abuse of discretion, we affirm.

This court reviews a district court’s order imposing a

term of imprisonment after revocation of supervised release for

abuse of discretion. United States v. Davis, 53 F.3d 638, 642-43

(4th Cir. 1995). The district court abuses its discretion when it

fails or refuses to exercise its discretion or when its exercise of

discretion is flawed by an erroneous legal or factual premise.

James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). In exercising

this discretion, the district court must consider the factors set
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forth in 18 U.S.C.A. § 3553(a). See 18 U.S.C.A. § 3583(e)(3) (West

Supp. 2004). 

Section 3553(a)(2)(D) states that in determining a

particular sentence, the court “shall consider . . . the need for

the sentence imposed . . . to provide the defendant with needed

educational or vocational training, medical care, or other

corrective treatment in the most effective manner.” 18 U.S.C.A.

§ 3553(a)(2)(D). Under 18 U.S.C.A. § 3583(g)(1) (West Supp. 2004),

revocation of supervised release is mandatory if the defendant,

like Jemerson, possessed a controlled substance in violation of the

terms of his supervised release. However, “[t]he court shall

consider whether the availability of appropriate substance abuse

programs, or an individual’s current or past participation in such

programs, warrants an exception . . . from the rule of Section

3583(g).” 18 U.S.C.A. § 3583(d) (West Supp. 2004). 

In considering the proper sentence to impose, the

district court heard evidence of Jemerson’s prior treatment for

drug abuse and the potential for his participation in an in-patient

treatment program. We find that implicit in the district court’s

decision to revoke supervised release and impose a prison term was

its consideration and rejection of Jemerson’s argument in favor of

his placement in an in-patient substance abuse program in lieu of

revocation of supervised release. Accordingly, we find no abuse of

discretion.
*Counsel raised this issue pursuant to Anders v. California,

386 U.S. 738 (1967). Because it is raised for the first time on

appeal, it is reviewed for plain error. Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993).

We also conclude that the district court did not commit

plain error by finding that Jemerson’s failed drug tests resulted

in a Grade B violation under U.S. Sentencing Guidelines Manual

§ 7B1.1(a)(2) (2004).* First, we note that Jemerson’s argument is

premised on the policy statements of Chapter Seven of the federal

sentencing guidelines, which are advisory and nonbinding. Davis,

53 F.3d at 642. Second, a Grade B violation consists of conduct

that constitutes any federal, state, or local offense punishable by

a term of imprisonment exceeding one year that is not defined as a

Grade A violation. USSG § 7B1.1(a)(2). Intentional use of a

controlled substance is sufficient to establish possession. See

United States v. Clark, 30 F.3d 23, 25 (4th Cir. 1994) (finding

voluntary and knowing ingestion constitutes possession). Because

of Jemerson’s prior drug-related conviction, his possession of

controlled substances would subject him to a term of imprisonment

exceeding one year. See 21 U.S.C. § 844(a) (2000). Accordingly,

Jemerson’s conduct resulted in a Grade B violation.

We therefore 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