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The Honorable Rodney W. Sippel, United States District Judge for the Eastern

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-4003

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Missouri.

Ericka Jeannine Kinder, *

* [UNPUBLISHED]

Appellant. *

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Submitted: August 6, 2004

Filed: August 11, 2004

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Before MELLOY, LAY, and COLLOTON, Circuit Judges.

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PER CURIAM.

While Ericka Jeannine Kinder was serving a 5-year term of supervised release,

she admitted to violating a number of conditions of her supervision, and the district

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 sentenced her upon revocation to 18 months imprisonment to be followed by

24 months supervised release. Kinder appeals, arguing that the imprisonment portion

of her revocation sentence represents an improper upward departure, that additional

supervised release was not authorized, and that one of the special release conditions

was an improper delegation of the district court’s authority to the probation officer.
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We reject each of these arguments, and find no abuse of discretion. See United States

v. Grimes, 54 F.3d 489, 492 (8th Cir. 1995) (sentence within limits of 18 U.S.C.

§ 3583(e) will not be disturbed absent abuse of discretion). 

Specifically, the policy statements found in Chapter 7 of the Sentencing

Guidelines, which recommend an imprisonment range of 5-11 months upon

revocation in Kinder’s circumstances, are only advisory; and the 18-month prison

term was therefore not an upward departure. See United States v. Shaw, 180 F.3d

920, 922 (8th Cir. 1999) (per curiam). In addition, the prison term was within

statutory limits, and was supported by the district court’s expressed desire to ensure

intensive mental health treatment at a Bureau of Prisons facility. See 18 U.S.C.

§ 3583(e)(3); 18 U.S.C. § 3553(a). The additional supervised release was also well

within statutory limits. See 18 U.S.C. § 3583(h); § 3583(b)(1). Finally, were we to

consider the imposition of the aforementioned special condition, see United States v.

Kress, 58 F.3d 370, 373 (8th Cir. 1995) (where party could have raised issue in prior

appeal but did not, court later hearing same case need not consider matter), we would

not find it improper under the circumstances here. 

Accordingly, we affirm. 

We also grant defense counsel's motion to withdraw. Counsel is reminded of

the obligations under Part V of this Court's Amended Criminal Justice Act Plan.

Specifically, counsel is to advise the defendant of the right to file a petition for writ

of certiorari in the Supreme Court of the United States, and to inform the defendant

as to the merits and likelihood of success in the filing of such a petition. If counsel

determines there are meritorious issues, defense counsel shall assist the defendant in

filing a petition for writ of certiorari. If counsel determines there are no meritorious

issues warranting the filing of a petition for writ of certiorari, counsel shall advise the

defendant of the procedures for filing a petition pro se, and the time limits for the
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filing of such a petition. Counsel shall file a certification with the clerk within 30

days certifying that he has complied with his obligations under Part V.

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