                 United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT

                              ___________

                              No. 96-3769
                              ___________

United States of America,            *
                                     *
           Appellee,                 *
                                     *   Appeal from the United States
     v.                              *   District Court for the
                                     *   Western District of Missouri.
Anthony Phillip Ontiveros,           *
                                     *        [UNPUBLISHED]
           Appellant.                *

                              ___________

                     Submitted:    February 28, 1997

                        Filed: March 6, 1997
                             ___________

Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.
                           ___________

PER CURIAM.


     In   December   1995,   the   district   court1   sentenced   Anthony
Phillip Ontiveros to time served and four years supervised release
for conspiring to distribute cocaine and marijuana.        Approximately
two months after Ontiveros began his supervised release, the
probation office petitioned the court to revoke his supervised
release because he had violated his release conditions by failing
to submit to a drug test and committing felony larceny.            At the
revocation hearing, Ontiveros admitted the violations.         The court
revoked   Ontiveros’s    supervised      release,   departed   from   the
Guidelines range of 8 to 14 months, and sentenced him to the



    1
     The Honorable Joseph E. Stevens, Jr., United States District
Judge for the Western District of Missouri.
statutory maximum 36 months imprisonment.   Ontiveros appeals, and
we affirm.




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     The Guidelines provisions contained in Chapter Seven are
advisory and non-binding, and the district court is free to depart
from the Guidelines range when, in its considered discretion, such
departure is warranted.           See United States v. Carr, 66 F.3d 981,
983 (8th Cir. 1995) (per curiam).                  We review for an abuse of
discretion       a    sentence   imposed    upon    revocation       of   supervised
release.    See United States v. Grimes, 54 F.3d 489, 492 (8th Cir.
1995).


     We disagree with Ontiveros’s assertion that the court departed
from the Guidelines range because it did not want to impose an
additional term of supervised release, and incorrectly thought the
imposition of supervised release was mandatory if the court imposed
a sentence within the Guidelines range.                 See 18 U.S.C. § 3583(h)
(supervised release is discretionary); U.S. Sentencing Guidelines
Manual § 7B1.3(g)(2), p.s. (1995) (same).                We believe the court’s
statements at the revocation hearing indicate the court imposed the
statutory    maximum       because   it    believed     that   the   circumstances
warranted    a       stiffer   penalty    than   only   a   sentence      within   the
Guidelines range, and that an additional term of supervised release
following a term of imprisonment within the Guidelines range would
be futile given Ontiveros’s extensive criminal history and the
short elapse of time between Ontiveros’s release from custody and
his return to criminal activity.                 Furthermore, we conclude the
court did    not       abuse   its   discretion    in    imposing     a   three-year
sentence.    Cf. United States v. Smeathers, 930 F.2d 18, 18-19 (8th
Cir. 1991) (per curiam) (concluding no abuse of discretion in
imposition of sentence where, inter alia, district court believed
sentence was appropriate to deter defendant from further criminal
conduct and protect public from further crimes).


     Accordingly, the judgment of the district court is affirmed.




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A true copy.


     Attest:


          CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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