* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 98-7044
v. (E.D. Okla.) RICKY LEE JACKSON, (D.C. No. CR-92-22-S) Defendant - Appellant.

ORDER AND JUDGMENT *
Before ANDERSON , McKAY , andLUCERO , Circuit Judges.
After examining Defendant-Appellant’s brief and the appellate record, this panel has determined unanimously that oral argumentwould not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without ora l argument. On May 29, 1992, Defendant pled guilty to violating 18 U.S.C. § 922(a)(6). He was sentenced to twenty-seven months’ imprisonme nt, to be followed by three years of supervised release. Defendant’s supervise d release began on October 4,-2-

1995. On January 21, 1998, the United States Probation Office filed a petition for the revocation of Defendant’s supervised release, a lleging several violations of the supervised release. At a subsequent hearing on March 17, 1998, Defendant admitted that he had committed five of the six alle ged violations of his supervised release. The district court found that Defendant h ad violated at least five conditions of his supervised release and revoked hi s supervised release. The court sentenced Defendant to twenty-four months’ imprisonment, the maximum statutory term allowable under 18 U.S.C. § 3583(e)( 3). Defendant challenges the court’s imposition of a sentence that exceeds the r ange recommended in United States Sentencing Guidelines § 7B1.4(a) for violati ons of the terms of his supervised release. Counsel for Defendant filed a motion to withdraw accompanied by an Anders brief. See 10th Cir. R. 46.4.2; Anders v. California , 386 U.S. 738 (1967). We review a sentencing court’s factual findings und erlying the application of the guidelines for clear error and its interpret ation and application of the guidelines de novo. See United States v. Davis , 151 F.3d 1304, 1308 (10th Cir. 1998); United States v. Pappert , 112 F.3d 1073, 1078 (10th Cir. 1997). Defendant’s argument focuses on the district court’ s decision to “depart” from the recommended sentence range. In accordance with Def endant’s criminal history category V and grade C violations, U.S.S.G. § 7B1.4 (a) recommends a range of-3-

seven to thirteen months’ imprisonment upon revocat ion of supervised release. The court stated that it had considered the policy statements in Chapter 7 of the guidelines recommending seven to thirteen months but believed that these provisions were advisory in nature. Consequently, the court sentenced Defendant to twenty-four months’ imprisonment pursuant to 18 U.S.C. § 3583(e)(3). Prior decisions of this court foreclose Defendant’s argum ent that the court was obliged to follow the recommended guideline range for revoc ation of supervised release. We held in United States v. Lee , 957 F.2d 770, 773 (10th Cir. 1992), that “the policy statements regarding revocation of supervise d release contained in Chapter 7 of the U.S.S.G. are advisory rather than mandatory in nature.” See also United States v. Hurst , 78 F.3d 482, 483-84 (10th Cir. 1996) (reaffirming Lee and advisory nature of Chapter 7 provisions in light of two Supreme Court cases). Lee requires the sentencing court to consider the poli cy provisions “in its deliberations concerning punishment for violation o f conditions of supervised release.” Lee , 957 F.2d at 774. In addition, the determination of sentence must be “reasoned and reasonable.” Id. Because the court took the policy statements into consideration, see R., Vol. II at 11, and because we cannot determine from the record that the sentencing decision was anythin g but “reasoned and reasonable,” Lee , 957 F.2d at 774, we affirm Defendant’s sentence u nder 18 U.S.C. § 3583(e)(3). See Hurst , 78 F.3d at 484. We also grant Counsel’s Motion-4-

to Withdraw. AFFIRMED and GRANTED. Entered for the Court
Monroe G. McKay Circuit Judge