United States of America v. Davis, 53 F.3d 638, 642-43 4th Cir. 1995 . The district court abuses its discretion…

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-5008
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KEVIN JEMERSON, a/k/a Bucky,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph Robert Goodwin,
District Judge. (CR-01-60)
Submitted: May 4, 2005 Decided: May 31, 2005
Before WILKINSON and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
John G. Hackney, Jr., LAW OFFICE OF JOHN G. HACKNEY, JR.,
Charleston, West Virginia, for Appellant. Kasey Warner, United
States Attorney, John J. Frail, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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PER CURIAM:
Kevin Jemerson appeals the district court’s order
revoking his term of supervised release and imposing a new period
of imprisonment. Jemerson was serving a three year term of
supervised release consequent to serving a fifty-one month sentence
for aiding and abetting cocaine base distribution. After Jemerson
admitted to violating the conditions of his supervised release by
testing positive for controlled substances on three occasions, the
district court revoked his term of supervised release and sentenced
him to fourteen months in prison. In this appeal, Jemerson
contends that the district court abused its discretion by failing
to consider the factors set forth in 18 U.S.C.A. § 3553(a) (West
2000 & Supp. 2004), specifically his need for substance abuse
treatment, when it revoked his supervised release and when it found
that his failed drug tests resulted in a Grade B violation.
Finding no abuse of discretion, we affirm.
This court reviews a district court’s order imposing a
term of imprisonment after revocation of supervised release for
abuse of discretion. United States v. Davis, 53 F.3d 638, 642-43
(4th Cir. 1995). The district court abuses its discretion when it
fails or refuses to exercise its discretion or when its exercise of
discretion is flawed by an erroneous legal or factual premise.
James v. Jacobson, 6 F.3d 233, 239 (4th Cir. 1993). In exercising
this discretion, the district court must consider the factors set

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forth in 18 U.S.C.A. § 3553(a). See 18 U.S.C.A. § 3583(e)(3) (West
Supp. 2004).
Section 3553(a)(2)(D) states that in determining a
particular sentence, the court “shall consider . . . the need for
the sentence imposed . . . to provide the defendant with needed
educational or vocational training, medical care, or other
corrective treatment in the most effective manner.” 18 U.S.C.A.
§ 3553(a)(2)(D). Under 18 U.S.C.A. § 3583(g)(1) (West Supp. 2004),
revocation of supervised release is mandatory if the defendant,
like Jemerson, possessed a controlled substance in violation of the
terms of his supervised release. However, “[t]he court shall
consider whether the availability of appropriate substance abuse
programs, or an individual’s current or past participation in such
programs, warrants an exception . . . from the rule of Section
3583(g).” 18 U.S.C.A. § 3583(d) (West Supp. 2004).
In considering the proper sentence to impose, the
district court heard evidence of Jemerson’s prior treatment for
drug abuse and the potential for his participation in an in-patient
treatment program. We find that implicit in the district court’s
decision to revoke supervised release and impose a prison term was
its consideration and rejection of Jemerson’s argument in favor of
his placement in an in-patient substance abuse program in lieu of
revocation of supervised release. Accordingly, we find no abuse of
discretion.

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*Counsel raised this issue pursuant to Anders v. California,
386 U.S. 738 (1967). Because it is raised for the first time on
appeal, it is reviewed for plain error. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993).
We also conclude that the district court did not commit
plain error by finding that Jemerson’s failed drug tests resulted
in a Grade B violation under U.S. Sentencing Guidelines Manual
§ 7B1.1(a)(2) (2004). * First, we note that Jemerson’s argument is
premised on the policy statements of Chapter Seven of the federal
sentencing guidelines, which are advisory and nonbinding. Davis,
53 F.3d at 642. Second, a Grade B violation consists of conduct
that constitutes any federal, state, or local offense punishable by
a term of imprisonment exceeding one year that is not defined as a
Grade A violation. USSG § 7B1.1(a)(2). Intentional use of a
controlled substance is sufficient to establish possession. See
United States v. Clark, 30 F.3d 23, 25 (4th Cir. 1994) (finding
voluntary and knowing ingestion constitutes possession). Because
of Jemerson’s prior drug-related conviction, his possession of
controlled substances would subject him to a term of imprisonment
exceeding one year. See 21 U.S.C. § 844(a) (2000). Accordingly,
Jemerson’s conduct resulted in a Grade B violation.
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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