                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-4990



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TONYA RYANS,

                                              Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.   Patrick Michael Duffy, District
Judge. (2:02-cr-01253)


Submitted:   July 6, 2007                 Decided:   August 15, 2007


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant.     Reginald Lloyd, United States
Attorney, Rhett DeHart, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              In July 2003, Appellant Tonya Ryans pled guilty to

student   loan       fraud   and   was    sentenced      to    sixteen    months   of

incarceration with a period of two years of supervised release to

follow.   Ryans’ supervised release commenced on February 4, 2005.

On August 22, 2006, Ryans’ probation officer filed a Petition for

Warrant or Summons alleging various supervised release violations.

A   summons    was    issued   requiring         Ryans   to    appear    before    the

magistrate judge on August 30, 2006.                Ryans failed to appear and

the court issued an Order for Bench Warrant.                  Ryans was arrested by

the United States Marshals on September 1, 2006.

              A violation report was prepared noting that Ryans faced

a statutory term of imprisonment of not more than two years, an

advisory guidelines range of three to nine months of imprisonment,

and that “[t]here [were] no reasons for departure in this case.”

The report alleged five violations: (1) failure to pay restitution

and an arrearage of $5,100; (2) failure to report to the probation

office on August 14, 2006; (3) failure to notify and provide

verification     of    employment;       (4)   failure    to    provide   financial

information as requested on two dates in August; and (5) failure to

submit a monthly supervision report for June 2006.

              On September 7, 2006, Ryans appeared for her supervised

release revocation hearing.          Although Ryans contested the alleged

violations, the court found by a preponderance of the evidence and


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beyond a reasonable doubt that she had violated the terms and

conditions of her release and revoked that release. The court then

departed from the recommended guideline range and sentenced Ryans

to two years in prison.             While the court did not provide prior

notice of its intent to depart from the advisory guidelines range,

Ryans did not object to the lack of notice at the hearing or in a

post-hearing motion.            Ryans timely appeals her sentence arguing

that the district court erred by failing to provide notice of its

intention       to    upwardly    depart    from    the    advisory     guidelines

sentencing range.         Finding no error, we affirm.

            Ryans contends on appeal that the district court erred by

not providing her with notice that it was contemplating a sentence

above the guidelines sentencing range of imprisonment. See Fed. R.

Civ. P. 32(h).         Because Ryans did not object, review on appeal is

for plain error.         Under the plain error standard, Ryans must show:

(1) there was error; (2) the error was plain; and (3) the error

affected her substantial rights.            United States v. Olano, 507 U.S.

725,    732-34       (1993).     Further,   even    if    these   conditions   are

satisfied, this court may exercise its discretion to notice the

error    only    if     the    error   “seriously   affect[s]     the    fairness,

integrity or public reputation of judicial proceedings.”                   Id. at

736 (internal quotation marks omitted).                   The burden of showing

plain error is on the defendant.            United States v. Strickland, 245

F.3d 368, 379-80 (4th Cir. 2001).


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              This court, post-Booker* has held that, pursuant to Rule

32(h), advance notice is required before a district court departs

or   varies    from    the   advisory      guideline    range    in    sentencing    a

defendant after the original judgment of conviction.                            United

States v. Davenport, 445 F.3d 366, 371 (4th Cir. 2006).                           The

failure to give notice that the court intends to depart is plain

error.    United States v. McClung, 483 F.3d 273, 276 (4th Cir.

2007).    However, this holding has not been extended to sentences

imposed after revocation of supervised release, which is governed

instead by Fed. R. Crim. P. 32.1.

              Unlike    Rule     32(h),     Rule   32.1   contains         no   notice

requirement in its express terms.              Pre-Booker, courts agreed that

no   notice     of    intent     to   depart    was    required       in   revocation

proceedings because the policy statements in Chapter 7 are merely

advisory.     See United States v. Shaw, 180 F.3d 920 (8th Cir. 1999);

United States v. McClanahan, 136 F.3d 1146 (7th Cir. 1998); United

States v. Taylor, 78 Fed. App’x 893 (4th Cir. 2003).                             Ryans

contends that post-Booker, now that the sentencing guidelines and

the Chapter 7 policy statements are both merely advisory, the need

to   distinguish       between    notice    requirements    in    sentencing       and

revocation hearings has evaporated. Thus, she concludes, the court

should engraft the notice requirement for sentencing departures to

supervised release violations.


      *
       United States v. Booker, 543 U.S. 220 (2005).

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            We disagree with Ryans’ analysis.          Ryans wholly ignores

the fact that Rule 32.1 has not been amended post-Booker to include

a notice requirement.         In addition, Ryans points to no authority

that supports her position.            Ryans cites to United States v.

Davenport, in which the court explained that post-Booker, Rule

32(h)    still    contained   a   notice   requirement   before   sentencing

hearings because “[t]here is essentially no limit on the number of

potential factors that may warrant a departure or a variance, and

neither the defendant nor the Government is in a position to guess

when or on what grounds a district court might depart or vary from

the   guidelines.”      445    F.3d   at   371   (internal   quotation   marks

omitted).    This case is inapplicable to her argument because it

discusses only Rule 32(h) in the post-Booker sentencing environment

and does not purport to apply to Rule 32.1.

            Moreover, Ryans’ twenty-four month sentence falls within

the range authorized by statute and is reviewable only to determine

if it is “plainly unreasonable” with regard to those 18 U.S.C.

§ 3553(a)(2000) factors applicable to supervised release revocation

sentences.       United States v. Crudup, 461 F.3d 433, 437 (4th Cir.

2006). As purely advisory policy statements, the sentencing ranges

provided by USSG § 7B1.4, have never bound the sentencing court.

See United States v. Davis, 53 F.3d 638, 640 n.6, 642 (4th Cir.

1995).    This court grants broad authority to the district court to

revoke its previous sentence and impose a term of imprisonment up


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to the statutory maximum.             Crudup, 461 F.3d at 440 (citing United

States v. Lewis, 424 F.3d 239, 244 (2d Cir. 2005)).

               Here, while Ryans was sentenced over the guidelines

range, her sentence did not exceed the statutory maximum of two

years.    The       district    court    more       than    adequately    provided      its

reasoning for the sentence, stating that it had “examined this case

very carefully, including the Defendant’s behavior, the Guidelines

that    are    in     effect,   and     the    statutory      factors     under   Section

3553(a).”       The district court stated that the Government’s request

was insufficient to address punishment or the “Defendant’s problems

and needs,” including the need to be treated for mental health

problems       and    personality     disorders        which    had   been   previously

diagnosed.          The court outlined her “totally” noncompliant behavior

while on supervision, the seriousness of the offense and her

“whitewash[ing]” of it, her lack of respect for the law and total

disdain       for    the   judicial     process,      and    the   need    for    adequate

deterrence of criminal conduct. Ryans concedes that there was

overwhelming         evidence    supporting         the    court’s    grounds     for   its

sentence.       We conclude that no notice was required prior to the

upward departure from the advisory guidelines sentencing range and

that Ryans’ sentence was not plainly unreasonable. Accordingly, we

affirm Ryans’ sentence. We dispense with oral argument because the

facts    and    legal      contentions        are    adequately      presented     in   the




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materials   before   the   court   and     argument   would   not   aid   the

decisional process.

                                                                    AFFIRMED




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