IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-10217 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CHARLES C. NOWDEN,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 4:96-CR-85-1 -------------------- November 3, 2000

Before REAVLEY, JOLLY and JONES, Circuit Judges.

PER CURIAM:*

Charles Cleveland Nowden appeals the three-year sentence

imposed by the district court after it found that he had violated

four conditions of his supervised release. Nowden argues that

the district court committed reversible error at sentencing by

failing to consider the applicable sentencing guidelines and

policy statements in determining his sentence and that the

sentence which resulted from an upward departure from the

guidelines is plainly unreasonable. Because Nowden did not raise

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-10217 -2-

these arguments in the district court, review is for plain error

only. See FED. R. CRIM. P. 52(b).

In sentencing a defendant following the revocation of his

supervised release, a district court is required to consider, but

is not bound by, the policy statements contained in Chapter 7 of

the sentencing guidelines. See United States v. Mathena,

(5th Cir. 1994). Our review of the record reveals that

the district court considered, yet rejected, the range of

imprisonment suggested by the policy statements. The district

court sentenced Nowden to three years’ imprisonment, which did

not exceed the maximum term of imprisonment authorized under

§ 3583(e)(3). Thus, the sentence was lawful.

Nowden’s argument that his sentence represents an upward

departure from the guidelines is unavailing. A sentence which

diverges from advisory policy statements is not a departure.

Mathena,

n.13. In light of the number and nature

of violations committed by Nowden, the district court

specifically found a need to impose a sentence that would serve

as a deterrent to further criminal activity by Nowden and as

punishment for his actions. As the district court was within its

discretion in considering these factors, the sentence cannot be

said to be plainly unreasonable. See

(e),

§ 3552(a).

The district court did not err, plainly or otherwise, in

sentencing Nowden to three years’ imprisonment following the

revocation of his supervised release.

AFFIRMED.