                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            JAN 29 2003
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 02-1026
 v.                                                 D.C. No. 94-CR-321-Z
                                                        (D. Colorado)
 JAMES MCFRANCIS CRUMB, JR.,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Defendant-Appellant James McFrancis Crumb, Jr. appeals from the

revocation of his supervised release which resulted in a sentence of 14 months

imprisonment and an order to pay the balance of previously-ordered restitution.

We have jurisdiction under 28 U.S.C. § 1291 to review the revocation and

conclude that the district court did not abuse its discretion in revoking his release.

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
We lack jurisdiction to review the resulting sentence because it is within the

applicable guideline range and therefore dismiss that portion of the appeal.



                                    Background

      In 1995, after pleading guilty to one count of escape and one count of bank

fraud, Mr. Crumb was sentenced to 37 months of imprisonment and five years of

supervised release and was ordered to pay $51,844.96 in restitution. During his

term of supervised release, Mr. Crumb was arrested for alleged violations of the

conditions of his release, including two counts of violation of law (based upon

state court charges of theft, criminal impersonation and forgery), three counts of

drug use and one count of failure to report an arrest. See 18 U.S.C. § 3583(e),

(g). The parties agreed to withdraw the first two counts of violation of law. At

the hearing before the district court, Mr. Crumb admitted to the three counts of

drug use and the count of failure to report an arrest. On the basis of evidence

presented at the hearing, the district court revoked supervised release, imposed a

14-month sentence of imprisonment and ordered Mr. Crumb to pay the balance of

his restitution in the amount of $50,245.00. Mr. Crumb appealed, and we now

affirm.

      Mr. Crumb’s counsel, the Federal Public Defender, has submitted an

Anders brief and a motion to withdraw from representation. See Anders v.


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California, 386 U.S. 738, 744 (1967). Counsel’s brief acknowledges that the

revocation of supervised release on the basis of the admitted drug use and failure

to report an arrest was within the district court’s discretion. Aplt. Br. at 7.

Furthermore, Counsel’s brief suggests that because Mr. Crumb’s sentence was

within the guideline range set forth in U.S.S.G. § 7B1.4, this court lacks

jurisdiction to review the sentence. Aplt. Br. at 9. Although afforded the

opportunity, Mr. Crumb has not filed a response to the brief and motion submitted

by counsel. After review of the record and counsel’s brief, we conclude there are

no meritorious issues for appeal.

      The district court did not abuse its discretion based on its findings of four

Grade C violations that were admitted by Mr. Crumb at the hearing. See 18

U.S.C. § 3583(e), (g); U.S.S.G. § 7B1.1(a)(3) (defining Grade C violations);

United States v. McAfee, 998 F.2d 835, 837 (10th Cir. 1993) (abuse of discretion

standard). None of the underlying facts regarding the Grade C violations were

contested at the hearing, and none of the facts are now contested.

      When a district court finds a Grade C violation, it may revoke supervised

release or extend its term or modify its condition. U.S.S.G. § 7B1.3(a)(2). In Mr.

Crumb’s case, the sentencing range suggested by the guidelines is 8-14 months of

imprisonment. U.S.S.G. §§ 7B1.3(b), 7B1.4(a). The general rule is that 18

U.S.C. § 3742(a) does not allow an appeal “because of a claim that a particular


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sentence is draconian.” United States v. Garcia, 919 F.2d 1478, 1479-80 (10th

Cir. 1990). Although § 7B1.4 is merely advisory rather than mandatory in the

context of a revocation of supervised release, see United States v. Hurst, 78 F.3d

482 (10th Cir. 1996), the jurisdictional rules surrounding § 3742(a) apply in this

context. Section 3742(a) prescribes the conditions under which a defendant may

appeal a final sentence, and its language does not limit its application to the

context of sentences imposed immediately after conviction. We see no reason to

treat the two contexts differently. Thus, we lack appellate jurisdiction to review

the district court's imposition of the 14-month sentence as it is within the range

suggested by § 7B1.4. See United States v. Norberto, No. 97-3003, 1997 WL

375362 at *1 (10th Cir. July 8, 1997) (unpublished); but see United States v.

Calvin, No. 00-1112, 2000 WL 1790028 at *2 (10th Cir. Nov. 29, 2000)

(unpublished) (relying on United States v. Sweeney, 90 F.3d 55, 57 (2d Cir. 1996)

and concluding that receipt of a term within the sentencing range does not

preclude appellate review).

      In light of the foregoing, we GRANT counsel’s motion to withdraw,

AFFIRM the revocation of supervised release, and DISMISS the appeal of the

sentence.

                                        Entered for the Court

                                        Paul J. Kelly, Jr.
                                        Circuit Judge

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