PUBLISH

UNITED STATES COURT OF APPEALS

Filed 11/18/96TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ELGRET LORENZO BURDEX,

Defendant-Appellant.

No. 95-6269

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

(D.C. No. CR-91-30-T)

Edward J. Kumiega, Assistant United States Attorney (Patrick M. Ryan, United States

Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Paul Antonio Lacy, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for

Defendant-Appellant.

Before EBEL, HOLLOWAY, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

Elgret Lorenzo Burdex appeals the statutory maximum, twenty-four month

sentence imposed by the United States District Court for the Western District of
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Oklahoma for his violation of the terms of his supervised release. Mr. Burdex contends

that the district court improperly departed upward from the sentence prescribed by

Chapter 7 of the United States Sentencing Guidelines, that he had inadequate notice of the

court’s intention to depart, and that his sentence was excessive and greater than necessary

because it failed to account for his need for post-incarceration drug treatment pursuant to

18 U.S.C. § 3553(a). We accept jurisdiction pursuant 28 U.S.C. § 1291 and affirm the

sentence imposed by the district court.

I. BACKGROUND

On April 14, 1995, after serving slightly less than forty-eight months of a fiftyseven month prison sentence, Mr. Burdex was released from incarceration and began

serving the court ordered term of three years supervised release. On June 12, 1995, only

two months after his release, Mr. Burdex submitted a urine sample pursuant to the terms

of his supervised release. The sample tested positive for cocaine and marijuana. 

Subsequently, on June 16 and June 22, 1995, Mr. Burdex failed to submit urine samples

as required by the terms of his supervised release. On July 13, 1995, an Amended

Petition for Warrant or Summons for Offender Under Supervision was filed that made the

following allegations: (1) Mr. Burdex submitted a urine specimen on June 12, 1995,

which tested positive for cocaine and marijuana usage; (2) he failed to submit urine

specimens for drug testing on June 16 and June 22, 1995; and (3) on July 10, 1995, Mr.
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Burdex stated that on or about May 28, 1995, he smoked marijuana that had been

“dusted” with cocaine. Mr. Burdex stipulated to each of these allegations. The district

court found that Mr. Burdex had violated the conditions of his supervised release and

revoked his remaining term of supervision.

In the sentencing phase of Mr. Burdex’s proceeding, the United States Probation

Office submitted a presentence report that calculated Mr. Burdex’s range of imprisonment

at eight to fourteen months using the “policy statements” contained in Chapter 7 of the

Sentencing Guidelines. The sentencing court considered this range and declared it

inadequate for Mr. Burdex. The district court stated that the recommended Chapter 7

range “does not address adequately the gravity of the defendant’s past criminal conduct

(i.e., Criminal History Category VI), nor the fact that the defendant possessed cocaine less

than two months after being released on supervision.” Aplt’s Br. Attach. A at 2. For

these reasons, the court sentenced Mr. Burdex to the statutory maximum of twenty-four

months imprisonment. See 18 U.S.C. § 3583(e)(3) (setting the maximum term at two

years in prison for violations of supervised release if the offense that resulted in the term

of supervised release is a class C or D felony).

II. DISCUSSION

We review the district court’s findings of fact underlying a sentence for clear error

and review de novo its interpretations of the Sentencing Guidelines. See United States v.
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Evans, 985 F.2d 497, 499 (10th Cir. 1993). We also review for clear error the district

court’s application of the Guidelines to the facts. See United states v. Lee, 957 F.2d 770,

772 (10th Cir. 1992).

Mr. Burdex makes three arguments on appeal. First, he argues that his case does

not present the extraordinary circumstances necessary for a district court to depart upward

from sentencing range prescribed by the Sentencing Guidelines’ Chapter 7 policy

statements. Second, he contends that the district court failed to give him adequate notice

of its intention to depart upward from the sentencing range prescribed by Chapter 7. 

Finally, he maintains that the district court imposed a sentence which was excessive and

greater than necessary in violation of 18 U.S.C. § 3553(a), because the court failed to

adequately consider his need for post-incarceration drug treatment. We address each of

these arguments in turn.

A. Departure from Chapter 7

Mr. Burdex contends that Chapter 7 of the Sentencing Guidelines is authoritative

and should not be departed from except for “extraordinarily compelling reasons.” Aplt’s

Br. at 12. Mr. Burdex relies on two recent Supreme Court decisions for this proposition: 

Williams v. United States, 503 U.S. 193 (1992), and Stinson v. United States, 508 U.S. 36

(1993). Mr. Burdex claims that his situation is not “extraordinary,” and therefore, the

district court erred by sentencing him to substantially more time in prison than Chapter 7
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of the Sentencing Guidelines allows. As Mr. Burdex’s counsel graciously admitted at

oral argument, the viability of this argument has been foreclosed by our decision in

United States v. Hurst, 78 F.3d 482, 483-84 (10th Cir. 1996) (reaffirming rule in Lee, 957

F.2d at 773, that “the policy statements regarding revocation of supervised release

contained in Chapter 7 . . . are advisory rather than mandatory in nature”).

B. Notice of Departure from Chapter 7

Despite the conclusion in Hurst that the Chapter 7 policy statements are not

binding upon a sentencing court, Mr. Burdex argues that a sentencing court should be

required to give defendants notice before departing upward from the applicable Chapter 7

policy statements. Mr. Burdex cites Burns v. United States, 501 U.S. 129 (1991), for the

well-settled proposition that a sentencing court must give a defendant reasonable notice

before departing upward, sua sponte, from a guideline sentencing range “on a ground not

identified as a ground for upward departure either in the presentence report or in a

prehearing submission by the Government,” id. at 138. This rule promotes “focused,

adversarial resolution of the legal and factual issues relevant to fixing Guidelines

sentences,” Burns, 501 U.S. at 137, and allows the defendant to marshal and present

evidence opposing any upward departure, see United States v. Hofierka, 83 F.3d 357, 362

(11th Cir. 1996). We have not previously decided whether a sentencing court must give
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notice before departing upward from a Chapter 7 recommended sentencing range. We

hold that such notice is not required.

Although Hurst did not address this issue, the Fifth Circuit case upon which Hurst

relies, Unites States v. Mathena, 23 F.3d 87 (5th Cir. 1994), did, stating that “[a] sentence

which diverges from advisory policy statements is not a departure such that a court has to

provide notice,” id. at 93 n. 13. See also Hofierka, 83 F.3d at 362 (11th Cir.)

(“[E]xceeding [the Chapter 7] range does not constitute a ‘departure.’ Consequently, we

hold that the sentencing court is not required to give notice of its intent to exceed the

Chapter 7 sentencing range.”) (citations omitted); United States v. Davis, 53 F.3d 638,

642 n. 15 (4th Cir. 1995) (“It is well established that ‘[a] sentence which diverges from

advisory policy statements is not a departure.’”) (quoting Mathena, 23 F.3d at 93 n. 13); 

United States v. Blackston, 940 F.2d 877, 893 (3d Cir.) (“When working with policy

statements (as opposed to guidelines), the district court is not required . . . to impose a

sentence outside of the prescribed range . . . by finding an aggravating factor that warrants

an upward departure . . . .”), cert. denied, 502 U.S. 992 (1991). We now adopt the wellaccepted position of the Fifth Circuit that a sentencing court is not required to give notice

of its intent to exceed the sentencing range prescribed by the Chapter 7 policy statements

for violations of supervised release.

This conclusion follows directly from our holding in Hurst that the Chapter 7

policy statements are not binding on sentencing courts. A sentence in excess of the
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Chapter 7 range is not a “departure” from a binding guideline. Rather, only the statutory

maximum imposed by Congress binds a sentencing court as to the length of a sentence

imposed upon a violation of supervised release. All discussions of applicable sentences

before a district court following the revocation of supervised release “should be grounded

in the common understanding that the district court may impose any sentence within the

statutory maximum.” Hofierka, 83 F.3d at 362. Thus, we find no error with the

sentencing court’s failure to give Mr. Burdex prior notice of its intention to depart from

the Chapter 7 policy statements. 

C. Application of 18 U.S.C. § 3553

Mr. Burdex next submits that the sentencing court failed to adequately consider his

need for post-incarceration drug treatment, and thus imposed a sentence which was

excessive and greater than necessary, in violation of 18 U.S.C. § 3553(a)(2)(D). We find

this argument unpersuasive.

18 U.S.C. § 3553(a) does not provide Mr. Burdex with any specific right to postincarceration drug treatment. Section 3553(a) provides in relevant part:

The court shall impose a sentence sufficient, but not greater than necessary,

to comply with the purposes set forth in paragraph (2) of this subsection. 

The court, in determining the particular sentence to be imposed, shall

consider--

. . .

(2) the need for the sentence imposed--

. . .
1 We note, for the sake of clarity, that Mr. Burdex did not argue that the district

court failed to give adequate reasons for its departure from the Chapter 7 policy statements as

required by 18 U.S.C. § 3553(c).

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(D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most effective

manner . . . .

18 U.S.C. § 3553(a)(2)(D). Other factors to be considered pursuant to section 3553(a)

when imposing a sentence are: “the nature and circumstances of the offense and the

history and characteristics of the defendant,” 18 U.S.C. § 3553(a)(1); the seriousness of

the offense, see 18 U.S.C. § 3553(a)(2)(A); deterrence, see 18 U.S.C. § 3553(a)(2)(B);

protection of the public, see 18 U.S.C. § 3553(a)(2)(C); “the kinds of sentences

available,” 18 U.S.C. § 3553(a)(3); the guidelines and policy statements issued by the

Sentencing Commission, see 18 U.S.C. § 3553(a)(4)-(5); unwarranted sentence

disparities, see 18 U.S.C. § 3553(a)(6); and restitution to victims, see 18 U.S.C. §

3553(a)(7).

We have previously held that the sentencing court is not required to consider

individually each of the factors listed in 18 U.S.C. § 3553(a) before issuing a sentence. 

See Lee, 957 F.2d at 774-75 (citing United States v. Graves, 914 F.2d 159, 160 (8th Cir.

1990)). A sentencing court need only give the reasons for its action as required by 18

U.S.C. § 3553(c).1 Thus, when imposing a sentence, a district court need only consider

18 U.S.C. § 3553(a) en masse and state its reasons for imposing a given sentence. See id.

at 775; see also Blackston, 940 F.2d at 893-94. Here, the sentencing court clearly
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satisfied its duty under § 3553(a) and (c). The sentencing court noted that the sentencing

range applicable to Mr. Burdex under Chapter 7 was eight to fourteen months. The court

then stated:

The Court has considered the Guideline range and finds it is

insufficient to address the seriousness of the defendant’s conduct. 

Specifically, the recommend[ed] Guideline range does not address

adequately the gravity of the defendant’s past criminal conduct (i.e.,

Criminal History Category VI), nor the fact that the defendant possessed

cocaine less than two months after being released on supervision.

Aplt’s Br. Attach. A at 2 (emphasis added). The failure to discuss drug treatment

specifically is not sufficient to invalidate the sentence under 18 U.S.C. § 3553(a) and (c). 

See Lee, 957 F.2d at 774-75; Blackston, 940 F.2d at 893-94.

III. CONCLUSION

For the forgoing reasons, namely the non-binding nature of the Chapter 7 policy

statements, the lack of a requirement that the district court give notice of its intention to

depart from the Chapter 7 sentencing range prior to doing so, and the district court’s

adequate consideration of the factors listed in 18 U.S.C. § 3553(a), we AFFIRM the

sentence imposed by the district court.