UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 94-5914

LORETHA ANNETTE FORTUNE,

Defendant-Appellant.

Appeal from the United States District Court

for the Middle District of North Carolina, at Greensboro.

N. Carlton Tilley, Jr., District Judge.

(CR-90-27-G)

Argued: October 31, 1995

Decided: February 28, 1996

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: William Stimson Trivette, Assistant Federal Public

Defender, Greensboro, North Carolina, for Appellant. Richard Stanley Glaser, Jr., Assistant United States Attorney/Chief, Criminal Division, Greensboro, North Carolina, for Appellee. ON BRIEF:

William E. Martin, Federal Public Defender, Greensboro, North Carolina, for Appellant. Walter C. Holton, Jr., United States Attorney,

Shannon Joseph, Third-Year Law Student, Wake Forest University,

Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

After accepting a guilty plea, the United States District Court for

the Middle District of North Carolina convicted appellant Loretha

Annette Fortune ("Fortune") of possession with intent to distribute

crack cocaine and sentenced her to 5 years of probation. Four years

later, the district court found her guilty of violating her probation and

sentenced her to 30 months of imprisonment to run consecutively

with a state sentence for common law robbery pursuant to the United

States Sentencing Guidelines ("U.S.S.G.")§ 7B1.3(f).1 Fortune has

appealed the district court's decision to impose her sentence as running consecutively. The sole issue on appeal is whether the district

judge understood that U.S.S.G. § 7B1.3(f)'s dictate that the sentence

run consecutively was discretionary and not mandatory.

I.

While Fortune was on probation, the State of North Carolina

arrested her for robbery with a dangerous weapon, embezzlement, and

larceny of a motor vehicle. After she failed to appear in Guilford

County Superior Court on July 18, 1994 for the disposition of those

matters, the state re-arrested her on August 3, 1994. Fortune pled

guilty to common law robbery and the rest of the charges were dismissed. The North Carolina court sentenced her to five years in

prison.

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1 Section 7B1.3(f) provides:

Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is

serving, whether or not the sentence of imprisonment being

served resulted from the conduct that is the basis of the revocation of probation or supervised release.

 2
At her federal probation revocation hearing, Fortune admitted that

she committed robbery (although she contended without a weapon)

and embezzlement, and that she failed to appear at the North Carolina

Superior Court. The district judge sentenced her to 30 months of

imprisonment to run consecutively with her state sentence and four

years of supervised release for her probation violations.

II.

Chapter Seven of the Sentencing Guidelines addresses violations of

probation and supervised release. Unlike other chapters in the Sentencing Guidelines, Chapter Seven is a policy statement and is merely

advisory. United States v. Denard, 24 F.3d 599, 602 (4th Cir. 1994);

United States v. Sparks, 19 F.3d 1099, 1101 n.3 (6th Cir. 1994).2

Thus, while Chapter Seven's policy statements must be considered

when revoking a probation, they are nevertheless discretionary. Fortune has contended that the district judge was under the mistaken

impression that U.S.S.G. § 7B1.3(f) was mandatory when he ruled

that her 30-month sentence would run consecutively with her state

sentence.3

The record leaves us in some doubt as to whether the district judge

imposed the sentence believing it was mandatory or whether he

believed he was exercising his discretion. While it may be argued that

the transcript read as a whole suggests that the district judge understood the discretionary nature of Chapter Seven, the matter remains

unclear in a precise sense to us and can best be resolved by asking

the district judge to clarify his understanding of U.S.S.G. § 7B1.3(f).

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2 We limit our holding on policy statements' advisory nature to Chapter

Seven of the Sentencing Guidelines. Denard, 24 F.3d at 602.

3 18 U.S.C. § 3584(a) (1988) also gives the district judge discretion to

order a concurrent or consecutive sentence.

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We therefore remand the sentence so that clarification can be provided.

REMANDED

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