           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         December 17, 2009
                                     No. 09-60163
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

JOHNNY BRADBERRY,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:05-CR-77-2


Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Johnny Bradberry appeals the 60-month sentence imposed upon his
revocation of probation for his conviction of conspiracy to possess with the intent
to distribute less than 50 kilograms of cocaine. Bradberry argues that his
sentence is unreasonable because the district court considered his arrest record
and contempt charges in violation of U.S.S.G. §§ 4A1.2 and 4A1.3, the court
failed to provide adequate reasons for the sentence, the extent of the deviation
from the recommended range is significant, and the district court improperly

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 09-60163

considered a factor of which Bradberry was not provided advance notice.
Bradberry also argues that his due process rights were violated because the
sentence was predetermined by the district court.
      Bradberry did not argue before the district court that the court was barred
from considering his arrest record or contempt charges. Therefore, review is
limited to plain error. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
To show plain error, Bradberry must show a forfeited error that is clear or
obvious and that affects his substantial rights. See Puckett, 129 S. Ct. at 1429.
If the appellant makes such a showing, this court has the discretion to correct
the error but only if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings.     Id.   There are no binding Sentencing
Guidelines for revocation of probation or supervised release. United States v.
Headrick, 963 F.2d 777, 780-82 (5th Cir. 1992).          Rather, the Sentencing
Guidelines include non-binding policy statements concerning revocations.
See Guidelines Manual Ch. 7, Pt. A and Pt. B, intro. comment. Bradberry’s
argument that the district court improperly considered his arrest record and
contempt charges is without merit because it is not clear that the prohibitions
listed under §§ 4A1.2 and 4A1.3 apply to sentences imposed upon revocation of
probation. The court did not impose an upward departure under § 4A1.3. See
United States v. Mathena, 23 F.3d 87, 94 n.13 (5th Cir. 1994).
      The district court provided adequate reasons for the imposition of
Bradberry’s sentence. The court reflected on Bradberry’s criminal history, his
numerous violations of probation, and his contempt for the probation office. The
court’s statement is sufficient and does not constitute plain error. See United
States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996). Moreover, the district court
considered the Guidelines or policy statements of Chapter 7 before determining
that the facts of the instant case warranted a sentence of 60 months.
Bradberry’s sentence, while in excess of the 5-11 month range indicated by the
policy statements, was within the 60-month statutory maximum term of

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imprisonment that the district court could have imposed.           See 18 U.S.C.
§§ 3559(a), 3565(a); 21 U.S.C. §§ 841, 846.
      Bradberry received adequate notice of all alleged violations but for the
positive marijuana test.    The district court’s reasons for the imposition of
Bradberry’s sentence was based on several factors, even excluding the positive
marijuana test. Finally, it is unclear that the district court violated Bradberry’s
rights by cautioning him about the imposition of the statutory maximum
sentence should his probation be revoked. Therefore, Bradberry’s sentence is
neither unreasonable nor plainly unreasonable, and he has not shown plain
error. See Puckett, 129 S. Ct. at 1429; United States v. Hinson, 429 F.3d 114, 120
(5th Cir. 2005).
      Accordingly, the judgment of the district court is AFFIRMED.




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