UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-5178

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

KENNETH N. GIBSON, III, a/k/a KG,

Defendant - Appellant.

Appeal from the United States District Court for the Southern

District of West Virginia, at Beckley. Thomas E. Johnston,

District Judge. (5:03-cr-00154-ALL)

Submitted: February 12, 2007 Decided: April 13, 2007

Before WILKINS, Chief Judge, and WILKINSON and MOTZ, Circuit

Judges.

Affirmed by unpublished per curiam opinion.

Mary Lou Newberger, Federal Public Defender, Jonathan D. Byrne,

Appellate Counsel, Lex A. Coleman, Assistant Federal Public

Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West

Virginia, for Appellant. Charles T. Miller, United States

Attorney, Miller A. Bushong, III, Assistant United States Attorney,

OFFICE OF THE UNITED STATES ATTORNEY, Beckley, West Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Kenneth N. Gibson, III appeals the revocation of his term of

supervised release by the district court and the resulting

sentence. Finding no error, we affirm.

I.

In late 2003, Gibson pleaded guilty to distribution of cocaine

base. He was sentenced to 36 months imprisonment, to be followed

by a three-year term of supervised release.

Gibson began to serve his supervised release term on

October 7, 2005. Less than two months later, on December 1,

Gibson’s urine tested positive for cocaine. Gibson had two

additional positive tests on June 23 and July 7, 2006. At that

point, Gibson heeded the advice of his probation officer to enter

a drug treatment program. The probation officer described Gibson

as doing “moderately well” in the program but noted that Gibson had

missed four random drug screens during the course of his

participation. J.A. 31.

In September 2006, Gibson was charged in state court with

sexual assault and burglary. Shortly thereafter, the probation

officer petitioned for revocation of Gibson’s supervised release,

citing two violations of the conditions of release: commission of

a crime and use of a controlled substance. Without objection from

the Government, the district court bifurcated the proceedings and

held the petition in abeyance insofar as it related to the state
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court charges. The court then proceeded on the drug possession

charges and ruled that Gibson was subject to revocation under 18

U.S.C.A. § 3583(g)(4) (West Supp. 2006) (providing for revocation

of supervised release if the defendant “tests positive for illegal

controlled substances more than 3 times over the course of 1

year”). Although Gibson urged the court to exercise its discretion

not to revoke his supervised release, see 18 U.S.C.A. § 3583(d)

(West Supp. 2006), the court sentenced him to ten months

imprisonment.

II.

Gibson first maintains that the district court failed to

recognize its discretion to except him from mandatory revocation of

supervised release, see id. We conclude, however, that the

district court was aware of its discretion and simply declined to

exercise it.

Section 3583(g)(4) provides for mandatory revocation of

supervised release when a defendant has tested positive for illegal

drug use more than three times in the course of a year. See id.

§ 3583(g)(4). However, § 3583(d) requires the court to consider

“whether the availability of appropriate substance abuse treatment

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

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

3583(g).” Id. § 3583(d). Although Gibson brought this provision

to the attention of the district court during the revocation
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hearing, the court did not explicitly discuss it. However, in

ruling on Gibson’s motion for reconsideration, the district court

acknowledged and expressly declined to exercise its discretion

under § 3583(d).

As an alternative to his claim that the district court was

unaware of its discretion not to revoke his supervised release,

Gibson argues that the court abused its discretion by resting its

decision solely on the facts that constituted the basis for

revocation in the first place. In essence, Gibson argues that the

district court was required to exercise its discretion because

Gibson was participating in a drug treatment program with moderate

success. We reject this argument. Successful participation in a

drug treatment program renders a defendant eligible for a

discretionary denial of revocation; it does not create an

entitlement. Here, the district court was within its discretion to

conclude that the circumstances did not warrant denial of

revocation.

III.

Gibson next argues that the ten-month sentence imposed by the

district court is “plainly unreasonable,” United States v. Crudup,

461 F.3d 433, 438 (4th Cir. 2006), petition for cert. filed,

No. 06-7631 (U.S. Nov. 3, 2006). We disagree.

Gibson does not dispute that the district court properly

calculated the applicable guideline range--8 to 14 months--and
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sentenced him within it. He simply maintains that the sentence

imposed by the district court is unreasonable because it is

unnecessary to achieve the goals of imposing a sentence for a

supervised release violation. See id. at 437-38 (noting that the

purpose of a sentence upon revocation of supervised release is “to

sanction the violator for failing to abide by the conditions of the

court-ordered supervision” (internal quotation marks omitted)). We

conclude, in light of the broad discretion granted to the district

court regarding sentencing upon revocation of supervised release,

that the sentence is not unreasonable.

IV.

For the reasons set forth above, we affirm. We dispense with

oral argument because the facts and legal contentions are

adequately presented in the materials before us and oral argument

would not aid the decisional process.

AFFIRMED