UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-5131

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JAMES ARTHUR LEMON, a/k/a Bobby,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern

District of North Carolina, at Raleigh. James C. Fox, Senior

District Judge. (CR-94-97)

Submitted: June 23, 2005 Decided: June 28, 2005

Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Assistant Federal Public Defender, Jane E. Pearce, Research and

Writing Attorney, Raleigh, North Carolina, for Appellant. Frank D.

Whitney, United States Attorney, Anne M. Hayes, Christine Witcover

Dean, Assistant United States Attorney, Raleigh, North Carolina,

for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

James Arthur Lemon appeals his sentence imposed upon a

violation of his term of supervised release from his previous

conviction on drug-related charges. Lemon was ultimately sentenced

to 132 months’ imprisonment on the underlying conviction, after the

sentence was reduced twice by the district court based upon Lemon’s

substantial assistance. He now challenges the district court’s

imposition of a sentence of thirty-six months’ imprisonment for his

admitted violations of the terms of his supervised release. 

According to the undisputed facts, Lemon was released

from custody, and his term of supervised release began on June 3,

2004. At his first visit with his probation officer, on June 7,

2004, Lemon admitted to smoking marijuana two days after he had

been released from prison. Subsequent urinalysis testing revealed

that Lemon had used cocaine, and Lemon admitted to being addicted

to cocaine. Lemon later failed to attend treatment, failed to

provide urine screens as directed, and failed to report for weekend

jail confinement, ordered by the district court as a result of his

violations. After the district court ordered Lemon to be placed in

a community confinement center, Lemon tested positive for cocaine

use, failed to report for work, and failed a breathalyzer test. 

Lemon’s federal probation officer thereafter filed a

motion to revoke Lemon’s supervised release. In addition to

Lemon’s admission that he had violated the rules of the community
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corrections center, Lemon, by counsel, requested treatment for his

crack cocaine addiction, as well as evaluation and treatment for

depression. The district court stated that it had considered the

policy statement on revocation contained in Chapter Seven of the

sentencing guidelines, and while the applicable guideline range

called for a sentence of eight to fourteen months, it determined

that Lemon’s sentence should be thirty-six months’ imprisonment to

ensure that Lemon could receive intensive substance abuse treatment

while incarcerated. On appeal, Lemon contends that the sentence

imposed by the district court was unreasonable, given the

applicable sentencing guidelines policy statement.

This court reviews a sentence imposed by a district court

as a consequence of a supervised release violation for abuse of

discretion. United States v. Davis, 53 F.3d 638, 642-43 (4th Cir.

1995). The sentencing ranges provided by U.S. Sentencing

Guidelines Manual § 7B1.4, p.s., are purely advisory and do not

bind the sentencing court. Davis, 53 F.3d at 672 (supervised

release revocation proceeding); United States v. Denard, 24 F.3d

599, 602 (4th Cir. 1994) (probation revocation proceeding). In

addition, the guidelines commentary establishes the propriety of a

sentence above the recommended range where, as here, the original

sentence was the result of a downward departure. USSG § 7B1.4,

p.s., cmt. n.4. 
 *

We also note that the sentence Lemon received on the

supervised release violation was still below his original guideline

sentencing range, and the supervised release violation was based on

a number of drug-related events, which began within days of Lemon’s

release from custody.

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We find, given that the district court here considered

the guidelines prior to imposing sentence and imposed the thirtysix month sentence to ensure that Lemon could receive the intensive

substance abuse treatment he clearly needed and requested, the

district court’s sentence does not constitute an abuse of

discretion.*

Accordingly, we affirm Lemon’s conviction and sentence.

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