                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     November 14, 2003

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                              No. 03-10509
                            Summary Calendar



     UNITED STATES OF AMERICA,

                                              Plaintiff-Appellee,

          versus

     JEROME FREEMAN,

                                              Defendant-Appellant.




           Appeal from the United States District Court
                for the Northern District of Texas
                     USDC No. 5:96-CR-00094-2



Before GARWOOD, DEMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Jerome    Freeman   appeals   the   revocation   of   his    supervised

release and the twenty-four-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

characterizing     his   supervised-release    violations    as      Grade    B

violations under the policy statements set forth by the Sentencing



     *
      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opinion should not be published and is not precedent except under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.
Commission, when they were only Grade C violations.                Freeman

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) and 3553(a)(4) which require

consideration of the appropriate policy statements.

     Because Freeman did not assert this argument in the district

court, this court’s review is for plain error only.            See Fed. R.

Crim. P. 52(b); United States v. Calverley, 38 F.3d 160, 162-64

(5th Cir. 1994) (en banc), abrogated in part, Johnson v. United

States, 520 U.S. 461 (1997).        As the parties agree, the district

court committed error at Freeman’s revocation hearing in concluding

that the supervised-release violations were Grade B violations, and

the error was arguably clear in light of U.S.S.G. § 7B1.1, p.s.,

and the Texas statutes relating to Freeman’s violations.                 See

Calverley, 37 F.3d 162-64.        However, Freeman fails to demonstrate

that the district court’s error affected his substantial rights.

See id.

     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


                                      2
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    Freeman’s     supervised

release and its imposition of a twenty-four-month sentence were not

in violation of law, but were in accordance with the governing

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

836. Because the district court could, on remand, revoke Freeman’s

supervised   release       and   impose    the     same    sentence     (and   such a

sentence would not be plainly unreasonable), Freeman fails to

demonstrate that his substantial rights were affected by the

district   court’s     error     in     classifying       his   supervised-release

violations as Grade B violations.              See United States v. Leonard,

157 F.3d 343, 346 (5th Cir. 1998).                  Consequently, he fails to

satisfy the plain error standard of review.                  Id.; See also United

States v. Wheeler, 322 F.3d 823, 828 (5th Cir. 2003); Calverley, 37

F.3d at 164.

     Accordingly, the district court’s judgment is

                                       AFFIRMED.




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