United States of America v.  EARL THOMAS, a/k/a Skull

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4872 
EARL THOMAS, a/k/a Skull,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Dennis W. Shedd, District Judge.
(CR-00-780)
Submitted: April 16, 2003
Decided: April 28, 2003
Before WILLIAMS, TRAXLER, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Mark C. Moore, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Earl Thomas appeals the district court’s order revoking his term of
supervised release and sentencing him to two years imprisonment fol-
lowed by three years of supervised release. We have reviewed the
record and find no reversible error. We find that because the Chapter
7 policy statements of the United States Sentencing Guidelines are
merely advisory in nature, the district court did not abuse its discre-
tion by rejecting the suggested sentence and imposing the statutorily-
authorized sentence it deemed appropriate. See United States v. Davis,
53 F.3d 638, 642 (4th Cir. 1995). The court explained its decision was
based on the short time period between the commencement of Thom-
as’s period of supervised release and the occurrence of the undisputed
violations, coupled with his refusal to participate in in-patient drug
treatment, which was a special condition of his supervised release.
We also find that although a district court generally must provide an
explanation for its departure from the recommended sentencing range,
see United States v. Rusher, 966 F.2d 868, 882 (4th Cir. 1992), where,
as here, a sentence diverges from advisory policy statements, such
divergence is not a departure. See Davis, 53 F.3d at 642 n.15. Accord-
ingly, we affirm Thomas’s sentence.
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We there-
fore affirm Thomas’s sentence. This court requires that counsel
inform his client, in writing, of his right to petition the Supreme Court
of the United States for further review. If the client requests that a
petition be filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to withdraw
from representation. Counsel’s motion must state that a copy thereof
was served on the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
2 UNITED STATES v. THOMAS

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