                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                IN THE UNITED STATES COURT OF APPEALS                December 16, 2003
                        FOR THE FIFTH CIRCUIT
                                                                   Charles R. Fulbruge III
                                                                           Clerk

                               No. 03-10393
                             Summary Calendar



                         UNITED STATES OF AMERICA,

                                                       Plaintiff-Appellee,

                                    versus

                          DENNIE ROBERT MATHEWS,

                                                       Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                   USDC No. 3:99-CR-253-ALL-R
                       --------------------

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

PER CURIAM:1

     Dennie    Mathews    appeals   the   revocation    of   his    supervised

release and the 12-month sentence imposed by the district court.

He argues that the district court’s judgment should be vacated and

his case remanded because the district court erred in classifying

his supervised-release violation as a Grade B violation under the

policy statements set forth by the Sentencing Commission, when it


     1
        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that this opinion should not be published and is not precedent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.

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was only a Grade C violation.           Mathews contends that the district

court thus considered the incorrect sentence available and an

inapplicable sentencing range, in violation of 18 U.S.C. § 3583(e).

      Mathews preserved error at the revocation hearing with respect

to the district court’s classification. The court’s classification

of Mathews’s supervised release violation is a factual finding that

is reviewed for clear error.          See United States v. Huerta, 182 F.3d

361, 364 (5th Cir. 1999).

      The record reflects that the district court committed error at

Mathews’s revocation hearing in concluding that the supervised-

release violation was a Grade B violation in light of U.S.S.G. §

7B1.1(a), p.s., and the applicable Texas statutes relating to

Mathews’s violations.           Although the district court is required

under 18 U.S.C. § 3553(a)(4) to consider the applicable policy

statements, this court has held that the policy statements relating

to   revocation    of    supervised      release       and    resentencing      after

revocation are advisory only and non-binding.                    United States v.

Mathena, 23 F.3d 87, 92-93 (5th Cir. 1994).                  Because there are no

applicable    Sentencing       Guidelines,      this     court       will   uphold   a

defendant’s “revocation and sentence unless it is in violation of

law or is plainly unreasonable.”             United States v. Teran, 98 F.3d

831, 836 (5th Cir. 1996).

      The   district     court’s   revocation      of        Mathews’s      supervised

release and its imposition of a 12-month sentence were not in

violation    of   law,   but   were    in    accordance       with    the   governing

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statutory authority, 18 U.S.C. § 3583(e)(3). See Teran, 98 F.3d at

836.   Further, because Mathews does not argue that his sentence is

plainly unreasonable, the sentence is upheld despite the district

court’s   classification   error.       See   Teran,   98   F.3d   at   836.

Accordingly, the judgment of the district court is AFFIRMED.




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