UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 96-4065

JERMAINE AMERSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Charles H. Haden II, Chief District Judge.

(CR-91-258)

Submitted: September 20, 1996

Decided: October 7, 1996

Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Hunt L. Charach, Federal Public Defender, C. Cooper Fulton, Assistant Federal Public Defender, Charleston, West Virginia, for Appellant. Rebecca A. Betts, United States Attorney, Miller A. Bushong

III, Charleston, West Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Jermaine Amerson appeals from an order of the district court

revoking his supervised release and sentencing him to the statutory

maximum of two years. Amerson concedes a number of violations of

the conditions of supervised release, including possession of crack

cocaine, but contends that the district court clearly erred in finding

that he possessed crack with intent to distribute. He also argues that

revocation of his supervised release and imposition of the maximum

sentence was an unreasonable response to the less serious violations

he admitted committing. Finding no error, we affirm.

Amerson was previously convicted of possession of crack with

intent to distribute. In the four months following his release from

prison at the end of August 1995, Amerson failed to participate in

required random drug tests on six occasions and tested positive for

cocaine use on three occasions. On December 17, 1995, Amerson was

arrested with about three grams of crack and six grams of marijuana.

He had $1318 in cash in his pocket. The passenger in his car had $500

in cash. Amerson was charged in state court with possession of crack

and marijuana with intent to distribute.

At the revocation hearing, Amerson asked that the court continue

him on supervised release, allow him to participate in a 28-day inpatient drug treatment program, and thereafter place him on home confinement with electronic monitoring.1 The government did not oppose

his request. Amerson did not testify, but proffered that the drugs he

possessed when he was arrested were for his personal use only. A

police detective testified that the amount of drugs found on Amerson

was consistent with personal use and that, consequently, the money

initially confiscated from Amerson had been returned to him. However, the district court questioned the detective's conclusion that the

crack was for Amerson's personal use, particularly when both Amerson and his companion were carrying large amounts of cash. The

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1 Amerson waived any argument that this would constitute revocation

of his supervised release.

 2
court found it equally likely that Amerson had sold some crack just

before his arrest and had a small amount left.

Amerson then proffered that the money he was carrying was for

payment of taxes on his wife's rental property. The court examined

the documents he submitted in support of this explanation, but ultimately found it not credible because the taxes were not due for some

months.2

We first find that, in view of the circumstances of Amerson's

arrest, the district court did not clearly err in finding as a fact that

Amerson possessed crack with the intent of selling it. Amerson's second argument also fails. Revocation of Amerson's supervised release

was mandatory given that he illegally possessed a controlled substance, see 18 U.S.C.A. § 3583(g)(1) (West Supp. 1996), and the

court merely exercised its discretion in sentencing him above the

range set out in USSG § 7B1.4, p.s.3 See United States v. Davis, 53

F.3d 638, 642 (4th Cir. 1995).

The district court's order is therefore affirmed. 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

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2 After the money was returned, Amerson's wife used it for car repairs.

3 United States Sentencing Commission, Guidelines Manual (Nov.

1995).

 3