                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 99-3543
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Western District of Missouri.
Steve J. Brown,                          *
                                         *          [PUBLISHED]
             Appellant.                  *
                                    ___________

                            Submitted: January 6, 2000
                                Filed: February 11, 2000
                                    ___________

Before McMILLIAN, RICHARD S. ARNOLD, and HANSEN, Circuit Judges.
                           ___________

PER CURIAM.

       After Steve Brown admitted to violating the conditions of his supervised release,
the district court1 revoked his supervised release and sentenced Brown to 24 months
imprisonment. On appeal, Brown contends that the 1994 amendment to 18 U.S.C.
§ 3553(a)(4)(B) rendered the policy statements in Chapter 7 of the U.S. Sentencing
Guidelines Manual regarding supervised release violations binding, rather than
advisory, and, therefore, that the court erred by sentencing him above the range


      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
suggested by § 7B1.4(a). He also argues that the court abused its discretion by
imposing a sentence above the 7-13 month revocation imprisonment range contained
in U.S. Sentencing Guidelines Manual § 7B1.4(a), p.s. (1998).

        Brown first argues that the policy statements in Chapter 7 of the Guidelines are
made binding by § 3553(a)(4)(B), as amended, which provides that the district court
“shall consider . . . the applicable guidelines or policy statements issued by the
Sentencing Commission” when imposing a sentence upon revocation of supervised
release. Because he did not present this argument below, we are limited to reviewing
for plain error. See United States v. Montanye, 996 F.2d 190, 192 (8th Cir. 1993) (en
banc), cert. denied, 519 U.S. 938 (1996). To warrant reversal under this standard of
review, an error must be “clear under current law.” Id. at 192. Brown has not directed
our attention to any case law holding that the amendment to § 3553(a)(4)(B) rendered
the Chapter 7 policy statements, which the Sentencing Commission itself says are
advisory only, binding. Instead, he candidly acknowledges that this argument has been
rejected by the circuits which have considered it. Moreover, this 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.
See United States v. Shaw, 180 F.3d 920, 922 (8th Cir. 1999); United States v. Carlton
Bernard Brown, Slip Op. No. 99-3115 (8th Cir. Dec. 23, 1999). Finally, as a textual
matter, the statute itself does not clearly say that the Chapter 7 policy statements are
to be binding on a district court. The mandatory "shall impose . . . within the range .
. . in subsection (a)(4)" language in § 3553(b) refers only to guidelines, and makes no
mention of those policy statements which the Sentencing Commission itself considers
non-binding. For these reasons, we conclude that the district court did not commit any
error, much less plain error, by treating § 7B1.4(a) as advisory and sentencing Brown
above the suggested range.

     We also conclude that the district court did not abuse its discretion by sentencing
Brown to 24 months imprisonment. See United States v. Grimes, 54 F.3d 489, 492

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(8th Cir. 1995) ("A sentence imposed within the limits of §3583(e) will not be
disturbed 'absent an abuse of discretion.'"). At the revocation hearing, the court
discussed the seriousness of Brown’s criminal history and the frequency of his
violations of supervised release. The court also inquired of Brown whether he would
be helped by additional treatment, and Brown responded that he had already been
through the intensive substance abuse program offered by the Bureau of Prisons and
did not need further treatment. These discussions demonstrate the court’s consideration
of the relevant statutory factors, and show that the sentence imposed was a carefully
considered exercise of discretion. See 18 U.S.C. § 3553(a)(1) and (a)(2)(B-D) (court
shall consider defendant’s history and characteristics, need to deter defendant from
criminal conduct, need to protect public from further crimes by defendant, and need to
provide defendant with medical care or correctional treatment) (made applicable to
supervised release by 18 U.S.C. § 3583(e)); Grimes, 54 F.3d at 492-93 (no abuse of
discretion where district court considered number and nature of defendant’s violations
of supervised release in selecting revocation sentence). We further note that the
imposed 24-month term of imprisonment, plus the 13 months Brown has already served
for violating the terms of his supervised release on his first revocation, a total of 37
months, does not exceed the 60-month maximum authorized term of imprisonment for
revocation of supervised release pursuant to 18 U.S.C. § 3583(e)(3) for a Class A
underlying felony offense, see United States v. Brings Plenty, 188 F.3d 1051, 1053 (8th
Cir. 1999), nor does the 24-month term of imprisonment, when combined with the 13
months already served, exceed the 48-month term of supervised release to which he
was originally sentenced, thereby complying with United States v. St. John, 92 F.3d
761, 766 (8th Cir. 1996).

      Accordingly, we affirm the judgment of the district court.




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A true copy.

      Attest:

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




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