[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                        ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                                 July 05, 2005
                              No. 05-10243
                                                          THOMAS K. KAHN
                          Non-Argument Calendar               CLERK
                        ________________________

                    D. C. Docket No. 99-00434-CR-DMM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

ANDRE KANAYA,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                                (July 5, 2005)

Before BLACK, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     Andre Kanaya was serving a five-year term of supervised release following
his conviction and imprisonment for embezzlement when the probation department

issued a petition for warrant for violations of supervised release. The petition

charged that Kanaya violated the conditions of his release by (1) his arrest for

aggravated assault; (2) his arrest for possession of a firearm by a convicted felon;

(3) the failure to make restitution payments; and (4) the failure to submit complete

monthly reports.

      At the revocation hearing, Kanaya stated that he was prepared to admit the

violations regarding the failure to make restitution and to submit reports. He

further stated that he wished to admit the other violations, but that he could not do

so because other criminal charges were pending in connection with the arrests.

      Coral Gables police officer Jane Rojas testified that she had interviewed and

arrested Kanaya after an incident based on a domestic dispute between Kanaya’s

cousin and another man in which Kanaya fired a gun at the victim. Rojas further

explained that Kanaya had admitted that he had the gun and he told police how he

had disposed of it.

      Based on the testimony, the court concluded that Kanaya had violated all

four conditions of his release. Acknowledging that the guidelines gave an advisory

range of twelve to eighteen months imprisonment, the court inquired as to the

statutory limits. The probation officer explained that, because the original



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underlying charge was a Class B felony, the court could impose up to three years,

which was the time remaining on Kanaya’s supervised release, and up to two years

of additional supervised release after imprisonment. The court determined that the

guidelines range was inadequate to reflect the harm and the need to protect the

public, and, therefore, sentenced Kanaya to three years imprisonment and an

additional two years supervised release. Kanaya objected to a sentence in excess

of the guidelines range on the ground that the court had not given notice of a

possible departure.

      We review the district court’s decision to exceed the Chapter 7 sentencing

range for an abuse of discretion. United States v. Hofrieka, 

, 362 (11th

Cir. 1996).

      Chapter 7 of the Sentencing Guidelines contains policy statements which

provide ranges of imprisonment that a court may follow when revoking probation

or supervised release. See U.S.S.G. Ch. 7, Pt. A, intro. The Chapter 7 policy

statements are advisory only and are not binding on the sentencing court;

nevertheless, the sentencing court should consider the guidelines range in imposing

sentence. 

.

      There is no merit to Kanaya’s argument that the court was required to give

notice before sentencing him in excess of the guidelines range, as this claim is



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foreclosed by this court’s decision in Hofrieka, which held that a sentence in

excess of the Chapter 7 guidelines range is not a departure that requires notice. 

.

      Here, Kanaya’s offense constituted a Class B felony, authorizing the district

court to impose a sentence of up to three years imprisonment. 18 U.S.C.

§ 3583(e)(3). The court considered the guidelines range and the factors set forth in

18 U.S.C. § 3553(a) and determined that the guidelines range was inadequate.

Because the district court was not required to give notice that it would sentence

Kanaya outside the guidelines range, and the sentence imposed was within the

statutory maximum, the district court did not abuse its discretion. Accordingly, we

AFFIRM.




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