UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4190

MICHAEL D. PEFFER,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Virginia, at Big Stone Gap.

Glen M. Williams, Senior District Judge.

(CR-89-159)

Submitted: October 26, 2000

Decided: November 6, 2000

Before WIDENER, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

Theodore Simon, Philadelphia, Pennsylvania, for Appellant. Robert P.

Crouch, Jr., United States Attorney, S. Randall Ramseyer, Assistant

United States Attorney, Abingdon, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

Michael D. Peffer appeals the district court’s order revoking his

term of supervised release and imposing a sentence of two years

imprisonment after he violated the conditions of his supervised

release by repeatedly using cocaine and associating with a drug

dealer. We affirm. 

Raising the issue for the first time on appeal, Peffer argues that the

1994 amendments to 18 U.S.C.A. § 3553 (West 2000) made the

Chapter 7 policy statements of the federal sentencing guidelines binding on the sentencing court, and that the court therefore should have

sentenced him within the sentencing range of five to eleven months

applicable in his case. In United States v. Davis, 53 F.3d 638, 640-42

(4th Cir. 1995), this court held that the Chapter 7 policy statements

"are now and always have been non-binding, advisory guides to the

district courts in supervised release revocation proceedings." Davis,

53 F.3d at 642; see also United States v. George, 184 F.3d 1119, 1121

(9th Cir. 1999) (holding that Chapter 7 policy statements are not binding, rejecting contrary interpretation of United States v. Plunkett, 94

F.3d 517, 519 (9th Cir. 1996)). 

Next, Peffer argues that the district court failed to adequately consider the Chapter 7 sentencing range and the factors set out in § 3553.

Unless there is some reason to think otherwise, this court presumes

in non-departure cases that a district court properly considered the

pertinent statutory factors. See United States v. Johnson, 138 F.3d

115, 119 (4th Cir. 1998); Davis, 53 F.3d at 642 ("A court need not

engage in ritualistic incantation in order to establish its consideration

of a legal issue. It is sufficient if . . . the district court rules on issues

that have been fully presented for determination. Consideration is

implicit in the court’s ultimate ruling."). 

Peffer also claims that the district court considered impermissible

factors, thereby violating the constitutional protections of due process,

equal protection, and the Fifth Amendment, when he rejected the recommendation of his New Jersey probation officer for drug treatment,

and opted for a custodial sentence. He bases his argument on the

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court’s statement that the differing recommendations from Peffer’s

probation officers in Virginia and in New Jersey concerning the

proper sanction for Peffer’s violations of supervised release reflected

in part "the difference in the mores of the place in which a person

lives." We do not find that the court’s statement violates any of the

constitutional protections cited by Peffer. 

Finally, Peffer contends that his attorney rendered ineffective assistance when he failed to argue that the Chapter 7 guidelines were binding, or that the court was required to consider the Chapter 7

sentencing range, and failed to request a downward departure.

Because the record does not conclusively establish that Peffer’s attorney was ineffective, any such claim should be brought in a motion

pursuant to 28 U.S.C.A. § 2255 (West Supp. 2000). See United States

v. Smith, 62 F.3d 641, 650 (4th Cir. 1995). 

We therefore affirm the district court’s order. 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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