                    United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2578
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Myron Lee Touche,                        *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: December 10, 2002

                                   Filed: March 31, 2003
                                    ___________

Before WOLLMAN, JOHN R. GIBSON, and MELLOY, Circuit Judges.
                          ___________

JOHN R. GIBSON, Circuit Judge.

       Myron Touche appeals his sentence of fifteen months imprisonment imposed
in connection with the revocation of his supervised release. Touche had been placed
on supervised release as part of a 1993 sentence that began with 120 months
imprisonment. The district court1 revoked Touche's supervised release because he
violated the condition that he refrain from the possession and use of controlled
substances. Touche argues that the court abused its discretion in imposing this

      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
sentence because it was excessively long relative to the seriousness of his violation
and because the district court based his sentence in part on the fact that Touche had
not received the maximum sentence within the guideline range for his original offense
of aggravated sexual abuse. We conclude that there is no merit in these contentions
and affirm Touche's sentence.

                                         I.

       On August 24, 1993, Myron Touche pleaded guilty to one count of aggravated
sexual abuse of a five year old girl in violation of 18 U.S.C. §§ 1153, 2241(c), and
2245(2)(A) (1988). The district court sentenced him to 120 months imprisonment,
followed by three years supervised release. On April 12, 2002, Touche was released
from custody after completing his sentence. Under the standard conditions of
supervised release, he was required to refrain from possessing or using any controlled
substances. The conditions specific to his supervised release also forbade him from
consuming any alcoholic beverages. On April 16, 2002, Touche met with his
probation officer to review the conditions of his release and was required to submit
to a drug test. Four days after his release from prison, he tested positive for
marijuana. Two days later, on April 18, when the probation officer again visited
Touche at his home, Touche admitted that he was intoxicated. On April 22, 2002,
the probation officer filed a petition to revoke supervised release that alleged that
Touche possessed and used marijuana and consumed alcohol in violation of the
conditions to his supervised release. Touche agreed to admit to the marijuana
violation, and in exchange the government agreed to dismiss his alcohol violation.
On April 26, 2002, Touche admitted to the magistrate judge that he possessed and
used marijuana, and the judge recommended that Touche's supervised release be
revoked.

      On June 3, 2002, the district court adopted the recommendation of the
magistrate judge and revoked Touche's supervised release. The court observed that

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Touche had violated an important condition of his release within four days of his
departure from prison. In addition, the court commented on the seriousness of
Touche's original offense and the leniency shown him by the judge who sentenced
him in 1993:
      My policy is. . . that any of these people out there sexually abusing
      children, especially someone of this young age. . . they're going to get
      the longest sentence I can possibly give them under the law. . . He was
      sentenced to 120 months of custody when the guideline range was 135
      months, and certainly I would have given him 15 months more had I
      been sentencing him at that time.

       The court then stated that the sentencing range suggested by § 7B1.4 of the
Sentencing Guidelines for Touche's violation was four to ten months, but noted that
the Guidelines were not binding with respect to sentences imposed in connection with
the revocation of supervised release. Instead, the court sentenced Touche to fifteen
months in prison, to be followed by thirty months of supervised release. He also
ordered Touche to be placed in a halfway house upon his release from prison.
Touche filed this appeal.

                                         II.

      Under 18 U.S.C. § 3583(g) (2000), the district court was required to sentence
Touche to a term of imprisonment since he admitted he possessed a controlled
substance in violation of a standard condition of his supervised release. Since
Touche's supervised release was originally imposed in connection with his conviction
for aggravated sexual abuse, a Class A felony, the district court was permitted under
18 U.S.C. § 3583(e)(3) (2000) to sentence Touche to a maximum of five additional
years in prison. We review a sentence imposed for the revocation of supervised
release that is below this statutory maximum for abuse of discretion. United States
v. Holmes, 283 F.3d 966, 968 (8th Cir. 2002).



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       We conclude that the district court did not abuse its discretion by imposing a
fifteen month sentence for Touche's supervised release violation. Touche points out
that his sentence exceeded the range suggested in § 7B1.4 of the sentencing
guidelines by five months. Chapter 7 of the Sentencing Guidelines sets forth policy
statements, not actual guidelines, and as we have previously noted, these statements
are only non-binding recommendations to a court imposing a sentence for a
supervised released violation. See, e.g., United States v. Kaniss, 150 F.3d 967, 968
(8th Cir. 1998). The sentencing court has the discretion to impose a sentence greater
than that suggested by the policy statements, since "[t]he court's sentencing is
ultimately governed by statute rather than the policy statements." Holmes, 283 F.3d
at 968. In calculating its sentence, the district court must consider the factors set forth
in 18 U.S.C. § 3553(a), which include the nature and circumstances of the offense,
the need to promote deterrence, the need to promote respect for the law, and the need
to provide correctional treatment for the defendant. See United States v. Shaw, 180
F.3d 920, 923 (8th Cir. 1999).

       In this case, the district court stated that it determined Touche's sentence after
considering the factors set forth in 18 U.S.C. § 3553(a). The court observed that
Touche had violated an important condition of his release when he tested positive for
marijuana use only four days after leaving prison. It also noted that two days after
this first visit, the parole officer found Touche intoxicated, which violated yet
another condition of his release. The record shows that the court decided to impose
a fifteen month sentence after considering the fact that Touche committed these
violations immediately after his release from custody. Touche argues that this
sentence was disproportionate to the seriousness of his violation because the
government's petition was based on one isolated incident of drug use. He contends
that other cases where a sentence was imposed in excess of the range suggested by
§ 7B1.4 can be distinguished because they involved multiple violations of the
conditions of release. See, e.g., Holmes, 283 F.3d at 968-69. We reject this
argument. First, Touche's sentence was only five months longer than suggested by

                                           -4-
§ 7B1.4. More importantly, although Touche's violations were limited in number,
they began within days of his release from custody. The court's decision to impose
an increased sentence on the basis of this behavior takes into account the need to
provide deterrence and promote respect for the law, factors set forth in § 3553(a).
Therefore, we conclude that the district court did not abuse its discretion.

       Touche also argues that the district court abused its discretion because it
impermissibly based Touche's fifteen month sentence on its opinion that Touche was
not sufficiently punished for the sexual abuse of a five year-old girl. At the
dispositional hearing, the district court commented that he found Touche's offense to
be particularly egregious and that his policy was to give defendants found guilty of
such crimes the longest sentence possible under the law. The court also observed that
Touche's original sentence for this crime was fifteen months less than the maximum
sentence within the Guideline range, and that he would have given Touche an
additional fifteen months had he sentenced Touche for this crime. As Touche
acknowledges, we have previously held that under § 3553(a) the district court may
consider any leniency shown towards the defendant at his original sentencing when
imposing a sentence in connection with the revocation of supervised release. See
Kaniss, 150 F.3d at 968. In Kaniss, the district court imposed a sentence upon
revocation of supervised release that was longer than the recommendation of § 7B1.4,
relying partly on the fact that the defendant had originally been sentenced for only
four and one-half years when he could have received a sentence of at least twenty
years. Id. We held that the court did not abuse its discretion by taking into account
this earlier leniency. Touche argues that his situation is distinguishable because his
original sentence of 120 months was only fifteen months less than the maximum he
could have received. We are not persuaded by this argument. The fact that Touche’s
original sentence was less lenient than the defendant’s in Kaniss does not make this
factor irrelevant in determining a sentence that accommodates § 3553(a)’s goals of
promoting deterrence and respect for the law. Moreover, although Touche argues that
he benefitted from leniency at his original sentencing much less than the defendant

                                         -5-
in Kaniss, the district court's sentence for Touche’s supervised release violation
exceeded the suggested range by only five months, whereas the court in Kaniss
exceeded the guideline range by a greater margin. Kaniss, 150 F.3d at 968 (two years
longer than the range suggested by § 7B1.4). We conclude that the district court did
not abuse its discretion when it took the length of Touche's original sentence into
account in calculating the sentence for his violation of the conditions of his
supervised release.

      We affirm the sentence imposed by the district court.



      A true copy.

            Attest:

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




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