                                                            NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                                 ___________

                                 No. 09-4099
                                 ___________


                       UNITED STATES OF AMERICA

                                       v.

                                DON HARRIS,

                                       Appellant

                                 ___________

                 On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                     (D.C. Criminal No. 1-00-cr-00063-004)
                 District Judge: The Honorable Sylvia H. Rambo
                                  ___________

                   Submitted Under Third Circuit LAR 34.1(a)
                                May 21, 2010

       BEFORE: FUENTES, HARDIMAN, and NYGAARD, Circuit Judges.


                              (Filed: June 1, 2010)


                                 ___________

                          OPINION OF THE COURT
                               ___________

NYGAARD, Circuit Judge.
       Appellant Don Harris asks us to remand for re-sentencing because the District

Court failed to provide advance notice of its intention to depart upwards from the

sentencing guideline range applicable to a revocation of supervised release. We will

affirm the District Court.

       We review de novo a district court’s interpretation of a guideline. United States v.

Butch, 256 F.3d 171, 177 (3d Cir. 2001). A district court’s decision to exceed the

sentencing range prescribed by § 7B1.4 is reviewed for an abuse of discretion. United

States v. Schwegel, 126 F.3d 551, 555 (3d Cir. 1997). Revocation of Supervised Release

proceedings are subject to F ED.R.C RIM.P. 32.1(b)(2) which does not expressly or

implicitly require advance notice of the sentencing court’s intention to depart upward.

Harris relies on F ED. R.C RIM. P. 32(h) which states: “Before the court may depart from

the applicable sentencing range on a ground not identified for departure either in the

presentence report or in a party’s prehearing submission, the court must give the parties

reasonable notice that it is contemplating such departure.” Rule 32.1(b)(2), in contrast to

Rule 32(h), does not require this advance notice because the sentencing guideline

provisions for violations of supervised release, under U.S.S.G. § 7B1.4(a), are merely

policy statements which we have never considered mandatory. See Schwegel, 126 F.3d at

552. Rule 32(h) remains in full force notwithstanding that, under United States v.

Booker, 543 U.S. 220 (2005), all sentencing guidelines must be considered advisory,

rather than mandatory. Thus, although notice would be required if this case involved a



                                             2
departure from a guideline range for purposes of initial sentencing, this is not such a

departure. See Burns v. United States, 501 U.S. 129, 138 (1991). Therefore, we conclude

that the District Court was not required to notify Harris of its intent to impose a sentence

that exceeded the range recommended under U.S.S.G. § 7B1.4(a).1

       We will affirm the sentence.




        1
           We note that even were we to conclude that the District Court owed Harris
advance notice of its intention to upwardly depart, the record indicates that Harris’
counsel was indeed given advance notice that an upward departure was a possibility.
Officer Julie M. Persinger of the United States Probation Office — in two separate
dispositional reports — indicated that “because the defendant’s original sentence was
reduced as a result of substantial assistance, an upward departure may be warranted.”
Both of these disposition reports were copied to defense counsel.

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