                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 01-1672
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of Nebraska.
Eric T. Holmes,                         *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: October 16, 2001

                                 Filed: March 22, 2002
                                  ___________

Before HANSEN,1 Chief Judge, McMILLIAN, and BEAM, Circuit Judges.
                              ___________

BEAM, Circuit Judge.

      After Eric T. Holmes admitted that he violated a condition of his supervised
release by consuming amphetamine or methamphetamine, the district court2 revoked
his supervised release and sentenced him to twenty-four months' imprisonment.
Holmes appeals, contending that, in light of considerations set forth in 18 U.S.C. §

      1
       The Honorable David R. Hansen became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on February 1, 2002.
      2
       The Honorable Richard G. Kopf, Chief Judge, United States District Court for
the District of Nebraska.
3553(a) and in policy statements found within chapter 7 of the United States
Sentencing Guidelines Manual, the court imposed an excessive sentence and thereby
abused its discretion. We affirm.

      In determining a sentence, the court must consider various factors3 specific to

      3
          The considerations include:

      (1)      the nature and circumstances of the offense and the history
               and characteristics of the defendant;
      (2)      the need for the sentence imposed–
               (A) to reflect the seriousness of the offense, to
                      promote respect for the law, and to provide
                      just punishment for the offense;
               (B) to afford adequate deterrence to criminal
                      conduct;
               (C) to protect the public from further crimes of
                      the defendant; and
               (D) to provide the defendant with needed
                      educational or vocational training, medical
                      care, or other correctional treatment in the
                      most effective manner;
      ....
      (4) the kinds of sentence and the sentencing range established
           for–
           ....
           (B) in the case of a violation of probation or
                  supervised release, the applicable guidelines
                  or policy statements issued by the Sentencing
                  Commission pursuant to section 994(a)(3) of
                  title 28, United States Code;
      (5) any pertinent policy statement issued by the Sentencing
           Commission pursuant to 28 U.S.C. 994(a)(2) that is in
           effect on the date the defendant is sentenced[.]

18 U.S.C. § 3553(a).

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the defendant and the offense, including pertinent Sentencing Guidelines policy
statements (policy statements). 18 U.S.C. § 3553(a). The sentencing court "shall
impose a sentence sufficient, but not greater than necessary, to comply with" the
sentence's purposes, which are set forth in section 3553(a)(2). Id. Although the court
must recognize "that imprisonment is not an appropriate means of promoting
correction and rehabilitation," the sentence purposes that the court must consider
include promoting "respect for the law" and providing the defendant "with needed
educational or vocational training, medical care, or other correctional treatment in
the most effective manner." Compare 18 U.S.C. § 3582(a) with § 3553(a)(2)
(emphasis added).

       Although a sentencing court is required to consider the policy statements,
United States v. Hensley, 36 F.3d 39, 42 (8th Cir. 1994); United States v. Jones, 973
F.2d 605, 608 (8th Cir. 1992), it is entirely free to impose a revocation sentence
outside of the policy statement's suggested range when, "in its considered discretion,"
such a sentence is warranted, United States v. Carr, 66 F.3d 981, 983 (8th Cir. 1995).
Accord United States v. Hill, 48 F.3d 228, 231 (7th Cir. 1995) (indicating that
although it would be an abuse of discretion to ignore the policy statements, "they do
not replace [a court's] discretion by a rule"). "[T]his circuit has consistently held that
the policy statements in Chapter 7 of the Guidelines regarding supervised release
violations are advisory to, rather than binding on, the district court." United States
v. Brown, 203 F.3d 557, 558 (8th Cir. 2000).

      The court's sentencing is ultimately governed by statute rather than the policy
statements. United States v. Grimes, 54 F.3d 489, 492 (8th Cir. 1995). Absent an
abuse of discretion, we will not disturb a sentence imposed within the bounds of 18
U.S.C. § 3583(e), the statutory provision detailing parameters for modification or
revocation of supervised release. Grimes, 54 F.3d at 492.




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      We conclude that the district court did not abuse its discretion by sentencing
Holmes to twenty-four months' imprisonment for violating his supervised release.
Although the applicable policy statement suggests a term of imprisonment in the
range of six to twelve months, U.S. Sentencing Guidelines Manual § 7B.1.4(a)
(2001), his sentence was within the maximum statutory term and the court's
considerations were appropriate, thus satisfying the dictates of sections 3583(e)(3),
3582, and 3553(a). E.g., Hensley, 36 F.3d at 42.

       At the revocation hearing, before accepting Holmes' admission, the court
discussed the policy statement's recommended sentencing range and explained the
distinction between that sentencing scheme and the statutory sentencing scheme. The
court also heard reports of Holmes testing positive for methamphetamine, his failure
to attend drug treatment programs and group meetings, and his failure to complete
community service. The court discussed its concerns about Holmes' addiction to
methamphetamine and its belief that he could benefit from intensive drug treatment.
Upon revoking his supervised release, the court indicated that it was imposing the
prison term to reflect the seriousness of the violation. The court recommended "in
the strongest possible terms" that Holmes be enrolled in the comprehensive 500-hour
drug treatment program that is offered by the Bureau of Prisons. The government had
previously indicated that a lesser term would not allow him to be placed in that
program. The court also expressed its concern that Holmes "lacks the ability to deal
with his addiction," and that if he were merely placed in "a residential situation even
for three or four months that he's destined to fail, not because he's not trying but
because this is a horrible, horrible thing to try to overcome." Finally, the court
articulated its sincere hope that the twenty-four-month period of incarceration would
act as an impetus for Holmes to overcome his addiction in that he might mature and
internalize the cost of his addiction during that time.

       The district court's discussions demonstrate that it considered the relevant
statutory factors, and that the sentence imposed was based on "a carefully considered

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exercise of discretion." Brown, 203 F.3d at 558. The court explicitly considered
pertinent factors listed in the statute, including the policy statement's suggested
sentence range. Jones, 973 F.2d at 608. Also, given the nature of Holmes' violation
and reports of his failure to attend treatment programs and group meetings as required
by the terms of his supervised release, together with the court's recommendation that
he participate in the 500-hour drug treatment program, the court acted with
appropriate consideration and did not violate section 3582's mandate to recognize that
imprisonment is inappropriate to promote correction and rehabilitation.

      Accordingly, we affirm the sentence imposed by the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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