UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4877

CARL A. WARD,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Rebecca B. Smith, District Judge.

(CR-92-88-N)

Submitted: September 23, 1997

Decided: October 17, 1997

Before HALL, MURNAGHAN, and NIEMEYER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Stanley E. Sacks, SACKS & SACKS, Norfolk, Virginia, for Appellant. Helen F. Fahey, United States Attorney, Robert E. Bradenham

II, Assistant United States Attorney, Norfolk, 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Unpublished opinions are not binding precedent in this circuit.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:

Carl A. Ward appeals from the district court's order revoking his

supervised release and sentencing him to sixty months imprisonment.

Ward's counsel filed a formal brief pursuant to Anders v. California,

386 U.S. 738 (1967), in which he certified that there were no meritorious issues for appeal. Nonetheless, he presents one issue: whether

the district court erred in finding Ward guilty of violating the conditions of his supervised release and sentencing him to sixty months

imprisonment. Ward also has filed a pro se supplemental brief raising

several issues. For the following reasons, we affirm.

Ward was convicted of conspiring to distribute in excess of five

kilograms of cocaine and in excess of fifty grams of crack cocaine in

violation of 21 U.S.C. § 846 (1994). His sentence included five years

of supervised release. Ward subsequently appeared before the district

court for a supervised release revocation hearing. The revocation petition alleged that during his term of supervised release, Ward committed numerous violations of his supervised release conditions and

failed to respond to substance abuse treatment for his drug addiction.

Specifically, the petition alleged, and Ward stipulated, that he had

violated the conditions of his supervised release by using marijuana

on four occasions, failing to satisfactorily participate in drug treatment as directed by his probation officer, failing to report to his probation officer as directed, failing to submit a truthful monthly

supervision report to his probation officer, and failing to submit written monthly reports as directed. The addendum to the petition alleged

that Ward had violated his supervised released conditions by committing a crime. At the revocation hearing, the court stated that it would

not consider the addendum "in any regard," and that the addendum

would not play any part in the court's decision. The court found that

Ward had violated the conditions of his supervised release. The court

revoked his supervised release and sentenced him to sixty months

imprisonment.

On appeal, Ward claims that in view of his reasons for not complying with the conditions of his supervised release, the court's finding

that he had violated those conditions was not supported by the evi-

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dence. At the revocation hearing, Ward testified that he did not appear

for counseling and drug testing as required because he could not find

employment and he knew he was going to be reported for violating

his supervised release conditions. In essence, he explained that he did

not willingly or voluntarily violate the conditions of his supervised

release but exercised poor judgment in failing to report as ordered

because of his fear of being charged with violating his supervised

release conditions. He further testified that although he tested positive

for marijuana use, he was not smoking marijuana"the whole time."

He stated that he guessed that it must have just"stayed in [his] system" because "the test came up [positive] four times in less than 30

days."

The district court had only to find by a preponderance of the evidence that Ward violated a condition of his supervised release. See 18

U.S.C. § 3583(e)(3) (1994). This court reviews that determination for

an abuse of discretion. See United States v. Copley, 978 F.2d 829, 831

(4th Cir. 1992). Ward admits that he violated the terms of his supervised release. Furthermore, § 3583(e)(3) provides that a defendant

whose term of supervised release is revoked may be required to serve

no more than five years imprisonment if the offense that resulted in

the term of supervised release is a class A felony, which includes

Ward's offense. See 18 U.S.C. § 3559(a)(1) (1994); 21 U.S.C. § 846

(1994). Thus, the court sentenced him within the statutory range. Id.

Ward's sentencing guideline range for violating his supervised

release conditions is four to ten months, reflecting a Grade C violation

and a Criminal History Category II. U.S. Sentencing Guidelines

Manual § 7B1.4, p.s. (1995). In his pro se supplemental brief, Ward

alleges that the court erred by not sentencing him within that range.

In connection with revocation of supervised release, however, the

guidelines are advisory only and the district court is not bound to

impose a sentence within the range. See United States v. Davis, 53

F.3d 638 (4th Cir. 1995). Moreover, a sentence of imprisonment

imposed upon revocation of supervised release which is above the

guideline range is not a departure, and therefore, the rules governing

guideline departures are inapplicable. See United States v. Denard, 24

F.3d 599, 602 (4th Cir. 1994). The district judge stated that she had

given Ward "so many breaks" and she was not going to give "him any

more breaks." Thus, the district court did not abuse its discretion in

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revoking Ward's supervised release and sentencing him to sixty

months imprisonment. See Copley, 978 F.2d at 831.

Ward next contends that the district court erred by bringing up

information irrelevant to his supervised release hearing, such as the

status and actions of his co-defendants, consisting of some family

members. He also claims that the court erred by assuming he was still

involved in the distribution of drugs. However, we find that the district court did not abuse its discretion in sentencing Ward. See id.

Lastly, Ward makes a conclusory claim that he was not credited with

the six-month reduction in his initial sentence. He does not provide

any information in support of this claim. Moreover, Ward has waived

this claim because he did not raise it below and our refusal to consider

the claim would not result in a miscarriage of justice. See National

Wildlife Fed'n v. Hanson, 859 F.2d 313, 318 (4th Cir. 1988).

Accordingly, we affirm the district court's order revoking Ward's

supervised release and sentencing him to sixty months imprisonment.

This court requires that counsel inform his client, in writing, of his

right to petition the Supreme Court of the United States for further

review. If the client requests that a petition be filed, but counsel

believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel's motion must state that a copy thereof was served on his client.

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 in the decisional process.

AFFIRMED

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