IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40918 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MICHAEL DUDLEY,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. C-97-CR-62-8 -------------------- April 10, 2001

Before JOLLY, HIGGINBOTHAM, and JONES, Circuit Judges.

PER CURIAM:*

Appellant, Michael Dudley, appeals the district court’s

judgment revoking his probation. Finding no error, we affirm.

Contrary to Dudley’s assertion that the district court

considered revocation of probation mandatory pursuant to

(b), the transcript of the revocation hearing

reveals that the district court was well aware that revocation

was not mandatory. The district court heard substantial evidence

regarding Dudley’s participation in alcohol abuse and anger-

management programs, but ultimately concluded, in light of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 00-40918 -2-

Dudley’s sporadic compliance with the terms of his probation and

his failure to take advantage of the opportunities afforded him,

that Dudley should be imprisoned. Although the district court

did not specifically state that it considered other options, the

hearing transcript shows that the district court believed that

revocation was not mandatory. For example, the court stated that

“If [the court were to] revoke his probation,” Dudley could

complete the anger-management program. Further, the court stated

that it was “heading towards revocation” and “may very well

revoke his probation” but would hear from Dudley prior to

deciding. Such statements belie Dudley’s contention that the

district court considered revocation mandatory. In addition, had

the court believed revocation was the only option, the

presentation of testimony and argument beyond that necessary to

establish Dudley’s violations would have been a futile exercise.

The district court committed no error, plain or otherwise.

Dudley’s derivative due process argument necessarily fails.

AFFIRMED.