United States of America, Plaintiff-appellee, v. James Patrick Cohoon, Defendant-appellant, 956 F.2d 279 (10th Cir. 1992)

Defendant-appellant Patrick James Cohoon appeals the order of the district court sentencing him to twelve months imprisonment following violations of the conditions of his supervised release. Defendant was sentenced in 1988 to twenty-four months imprisonment and three years of supervised release after pleading guilty to the charge of distribution of a controlled substance. He began his term of supervised release after serving his prison sentence. In February 1991 defendant's supervised release was revoked because of multiple violations of the conditions of the supervised release; the violations included use of controlled substances and a conviction for driving while impaired. After a hearing, the district court sentenced defendant to twelve months imprisonment. The district court specifically rejected a sentence of three to nine months set out in U.S.S.G. § 7B1.4, upon its ruling that § 7B1.4 was merely a policy statement not binding on the court.

The principal issue on appeal is whether U.S.S.G. § 7B1.4, a policy statement, is binding on a court or merely advisory. This has been answered in United States v. Lee, No. 91-6079 (10th Cir. __________________, 1992), being issued contemporaneously with the instant order and judgment. In Lee, we hold that although the policy statements in Chapter 7 must be considered by a court, they are advisory and not binding. Our review of the record convinces us that the district court did consider the policy statement and did not err in imposing a sentence outside the range suggested in § 7B1.4. The twelve month sentence is permissible under 18 U.S.C. § 3583(e), and twelve months is a reasonable sentence under the circumstances of this case. See II R. 17-18.

AFFIRMED.