UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 03-4388

JIMMY JOE JUSTICE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of West Virginia, at Beckley.

Joseph Robert Goodwin, District Judge.

(CR-98-108)

Submitted: July 24, 2003

Decided: August 1, 2003

Before MICHAEL and MOTZ, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Mary Lou Newberger, Federal Public Defender, David R. Bungard,

Assistant Federal Public Defender, Charleston, West Virginia, for

Appellant. Kasey Warner, United States Attorney, John L. File, Assistant United States Attorney, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Jimmy Joe Justice appeals his ten-month sentence imposed following the revocation of his supervised release. Justice argues the district

court mischaracterized the most serious violation of his supervised

release as a Class B violation rather than a Class C violation. For the

following reasons, we affirm. 

Justice was convicted in 1998 following his guilty plea to distributing cocaine, see 21 U.S.C. § 841(a) (2000), for which he received a

twenty-seven month prison term followed by a three-year term of

supervised release, which commenced in July 2000. However, at a

hearing in April 2003, Justice essentially admitted to violating his

supervision in several respects,1 including a positive test for methamphetamine. Rather than challenging the majority of the charged violations, Justice argued only that his positive drug test amounted to a

Class C violation rather than a Class B violation for sentencing purposes,2

 as the base statutory maximum for the possession that could

be inferred from his positive test is one year. See United States v.

Trotter, 270 F.3d 1150, 1153-54 (7th Cir. 2001) (discussing 21 U.S.C.

§ 844 (2000)); U.S. Sentencing Guidelines Manual § 7B1.1(a)(3)

(2002). Finding Justice’s § 841 conviction qualified him for the

higher, two-year maximum term of imprisonment under § 844, the

district court concluded the violation constituted a Class B violation,

see § 7B1.1(a)(2), and imposed a ten-month sentence followed by

twenty-six months of supervised release. 

1Following Justice’s objection to an allegation that he had violated the

terms of his supervised release by committing larceny, the United States

withdrew that charge. 

2Given Justice’s criminal history, the sentencing range for a Class C

violation was four to ten months, whereas a Class B violation entailed a

six to twelve month sentence. 

2 UNITED STATES v. JUSTICE
We find no error in the district court’s imposition of a ten-month

custodial sentence, for two reasons. First, Justice’s arguments are

premised on the policy statements of Chapter Seven of the Sentencing

Guidelines, which are advisory and nonbinding. See United States v.

Davis, 53 F.3d 638, 642 (4th Cir. 1995). Second, we find no error in

the district court’s conclusion that Justice’s positive urine screen

amounted to a Class B felony. See Trotter, 270 F.3d at 1155. 

Accordingly, we affirm revocation of Justice’s supervised release

and his ten-month 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

UNITED STATES v. JUSTICE 3