UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                  No. 98-4855

IVY CHYRISSE MILLER,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Terrence W. Boyle, Chief District Judge.
(CR-94-70)

Submitted: August 31, 1999

Decided: September 23, 1999

Before MURNAGHAN, HAMILTON, and KING,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

M. Gordon Widenhouse, Jr., RUDOLF & MAHER, P.A., Chapel
Hill, North Carolina, for Appellant. Janice McKenzie Cole, United
States Attorney, Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Ivy Chyrisse Miller appeals the forty-eight-month sentence
imposed by the district court upon revocation of her supervised
release. She argues that the sentence was plainly unreasonable
because it exceeded the guideline range and was imposed without a
statement concerning the required statutory factors or an explanation
of the court's reasons for imposing a sentence above the sentencing
range, and suggests that the court erred in considering hearsay evi-
dence. We affirm.

Miller was sentenced in 1995 to a term of 168 months imprison-
ment after she pled guilty to participating in a crack conspiracy. Eight
months later, the district court reduced her sentence for substantial
assistance, see Fed. R. Crim. P. 35(b), and reduced her sentence to
time served. In March 1998, the probation officer moved to revoke
Miller's supervised release, noting that a sentence above the range
might be warranted under Application Note 4 to U.S. Sentencing
Guidelines Manual § 7B1.4, p.s. (1994), because Miller had previ-
ously received a downward departure for substantial assistance. At the
revocation hearing, Miller admitted that she had violated her condi-
tions of supervised release by making an unauthorized trip to Puerto
Rico in September 1996 with Ben Frierson, a convicted felon, and by
failing to notify her probation officer within seventy-two hours of
being questioned in September 1997 by an investigator from the dis-
trict attorney's office in Binghamton, New York, about a friend of
hers and Frierson's who had been arrested there with two kilograms
of crack cocaine in a travel bag bearing her name tag.

The sentencing range was 3-9 months. See USSG § 7B1.4. Miller
requested a minimum prison term or a sentence of community ser-
vice. She asserted that she had not known that Frierson had a criminal
record, that she had disassociated herself from him after she was

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questioned by the investigator, and that she failed to report her ques-
tioning because she was afraid the probation officer would think she
was involved with some wrongdoing. The government, on the other
hand, alleged that Miller had willfully violated her conditions of
supervised release. The district court continued the hearing to allow
further inquiry into these matters before it determined the revocation
sentence, reserving the right to impose a sentence longer than two
years if the evidence showed that Miller had gone back to drug traf-
ficking after having her sentence reduced.

When the hearing resumed, the government proffered certain facts
which made a strong circumstantial case that Miller had assisted
Frierson in drug trafficking and committed other illegal acts while on
supervised release. Miller stipulated to the proffered facts but denied
any wrongdoing. She informed the court that she was now married to
Frierson, was several months pregnant, and had been diagnosed with
multiple sclerosis. The district court imposed a sentence of four years
imprisonment.* On appeal, Miller argues that the sentence was
plainly unreasonable because the district court did not explicitly state
that it had considered the applicable policy statements in Chapter 7
of the U.S. Sentencing Guidelines Manual and did not state its reasons
for imposing a sentence outside the sentencing range.

Because Miller did not object to the sentence in the district court
on the grounds raised here, the plain error standard of review applies.
See United States v. Olano, 507 U.S. 725 (1993) (appellant must
show error which was plain, affected substantial rights, and must be
corrected to protect fairness, integrity, or public reputation of judicial
proceedings).

In sentencing a defendant after revoking a term of supervised
release, the district court must consider certain factors set out in 18
U.S.C.A. § 3553(a), one of which is the applicable Chapter 7 policy
_________________________________________________________________
*The statutory maximum sentence was five years imprisonment. See
18 U.S.C.A. § 3583(e)(3) (West Supp. 1999). When Miller was sen-
tenced for the conspiracy conviction, she was held responsible for 1.5
kilograms of crack; the statutory sentencing range was 10 years to life.
See 21 U.S.C.A. § 841(b)(1)(A) (West Supp. 1999). The offense was
thus a Class A felony. See 18 U.S.C.A. § 3559(a)(1) (West Supp. 1999).

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statements governing the revocation of supervised release terms. See
18 U.S.C.A. §§ 3553(a)(4)(B), 3583(e). The Chapter 7 policy state-
ments, however, are not binding. See United States v. Davis, 53 F.3d
638, 642 (4th Cir. 1995). If the court has considered the relevant fac-
tors and the applicable policy statements, the court has the discretion
to impose a sentence outside the ranges set out in the sentencing
guidelines. Id. at 642-43.

Miller concedes that the Chapter 7 policy statements are not bind-
ing, but questions whether the district court considered them at all
because the court made no mention of them. We find that, even if the
district court somehow failed to consider the Chapter 7 policy state-
ments which were cited in the revocation motion, and the first three
Olano criteria were thus met, the error would not be one that would
require correction because a failure to consider non-binding informa-
tion cannot seriously affect the fairness, integrity, or public reputation
of judicial proceedings. Therefore, Miller has not shown that plain
error occurred in this case.

Miller's claim that the sentence was unreasonable because the
court failed to explain why the sentence exceeded the range is also
without merit. The probation officer suggested in the motion for revo-
cation that a sentence above the Chapter 7 range might be warranted.
Miller subsequently admitted all the charged violations and stipulated
to facts proffered by the government which established that she had
lied to the court in the first revocation hearing, fraudulently obtained
a credit card while on supervised release and used it to rent cars for
Frierson, at least one of which was used to transport crack, and per-
jured herself at a friend's trial. The stipulated facts also provided
strong circumstantial evidence that Miller had again participated in a
crack conspiracy while she was on supervised release. In light of this
and of the previous downward departure Miller received, the sentence
was reasonable.

Since the briefs were filed, Miller has submitted as supplemental
authority, in support of her argument that the sentence was plainly
unreasonable, a copy of United States v. Comito , 177 F.3d 1166 (9th
Cir. 1999) (holding that consideration of girlfriend's hearsay allega-
tions at revocation hearing violated defendant's right of confronta-
tion). Comito is inapposite because Miller stipulated to the alleged

                     4
violations as well as to all the incriminating facts proffered by the
government, thus making direct evidence unnecessary. Moreover, we
have held that in sentencing the district court may consider uncorrob-
orated hearsay evidence that the defendant has had an opportunity to
rebut or explain. See United States v. Love, 134 F.3d 595, 607 (4th
Cir.), cert. denied, 118 S. Ct. 2332 (1998).

We therefore affirm the sentence. 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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