U.S. v. Mathena, 93-8054

Citation23 F.3d 87
Decision Date06 June 1994
Docket NumberNo. 93-8054,93-8054
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James William MATHENA, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Philip J. Lynch, Asst. Federal Public Defender, Lucien B. Campbell, Federal Public Defender, San Antonio, TX, for appellant.

Michael R. Hardy, Richard L. Durbin, Jr., Asst. U.S. Attys., James H. DeAtley, U.S. Atty., San Antonio, TX, for appellee.

Appeals from the United States District Court for the Western District of Texas.

Before HENDERSON, * SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

James Mathena appeals the district court's sentence imposed upon revocation of his supervised release. Finding Mathena's sentence neither imposed in violation of law nor plainly unreasonable, we affirm.

I

Mathena was convicted, pursuant to his guilty plea, of one count of distributing methamphetamine in violation of 21 U.S.C. Sec. 841(a)(1), and one count of aiding and abetting the assault of a federal officer with a dangerous weapon in violation of 18 U.S.C. Secs. 111, 2. Mathena was sentenced to forty-six months imprisonment and three years of supervised release. In addition to complying with the standard conditions of supervised release, 1 Mathena had to participate in a program approved by the United States Probation Office for substance abuse treatment.

Some time after Mathena had begun serving his term of supervised release, the government filed an amended motion to revoke Mathena's supervised release. The amended motion specifically charged Mathena with (1) operating a motor vehicle while intoxicated; (2) leaving the Western District of Texas without the permission of his probation officer or the district court; and (3) failing to report for substance abuse treatment. At his revocation hearing, Mathena pled true to the charges. The district court therefore granted the motion to revoke based on its finding that Mathena had violated the terms and conditions of his supervised release.

In determining an appropriate term of imprisonment, 2 the district court expressly considered the policy statements of Chapter 7 of the Guidelines. 3 Based on the revocation table set forth in U.S.S.G. Sec. 7B1.4(a), p.s., Mathena's applicable sentencing range was six to twelve months imprisonment. 4 Mathena asked the court to sentence him within this range. Citing Mathena's "contemptuous disregard" for the court's orders, the district court instead sentenced Mathena to the statutory maximum of thirty-six months imprisonment. The court entered a final order reflecting its decision, from which Mathena filed a timely notice of appeal.

II

"We will uphold a sentence unless it (1) was imposed in violation of law, (2) resulted from an incorrect application of the guidelines, (3) was outside the guideline range and is unreasonable, or (4) was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable." United States v. Headrick, 963 F.2d 777, 779 (5th Cir.1992) (citing 18 U.S.C. Sec. 3742(e)). Because there are no applicable guidelines for sentencing after revocation of supervised release, see U.S.S.G. Chapter 7 Part A 1. ("At this time, the Commission has chosen to promulgate policy statements only."), we will uphold Mathena's sentence unless it is in violation of law or is plainly unreasonable. Headrick, 963 F.2d at 779. In making those determinations, we review the district court's interpretation of statutes de novo. Id.

A

Mathena first contends that his sentence was imposed in violation of law because the district court failed to sentence him to a term of imprisonment within the applicable range set forth in U.S.S.G. Sec. 7B1.4, p.s. 5 The applicable statutory provision provides:

The court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and (a)(6) ... (3) revoke a term of supervised release, and require the person to serve in prison all or part of the term of supervised release without credit for time previously served on postrelease supervision, if it finds by a preponderance of the evidence that the person violated a condition of supervised release, pursuant to the provisions of the Federal Rules of Criminal Procedure that are applicable to probation revocation and to the provisions of applicable policy statements issued by the Sentencing Commission, except that a person whose term is revoked under this paragraph may not be required to serve more than 3 years in prison if the offense for which the person was convicted was a Class B felony, or more than 2 years in prison if the offense was a Class C or D felony.

18 U.S.C. Sec. 3583(e). Mathena argues that the plain language of that section--i.e., "pursuant to ... the provisions of applicable policy statements issued by the Sentencing Commission"--requires a sentencing court to follow, and not just consider, the policy statements of Chapter 7 of the Guidelines when imposing a sentence upon revocation of supervised release.

In deciding this question, we must initially determine whether Mathena's argument is foreclosed by our decision in Headrick, where we held that the "policy statements [of Chapter 7] are advisory only." 6 Id., 963 F.2d at 780. In that case, Headrick had been convicted of a firearms violation and sentenced to twelve months imprisonment to be followed by three years of supervised release. One of the conditions of Headrick's release was that he refrain from possessing or using any controlled substances. During the course of his supervised release, Headrick repeatedly submitted urine samples that tested positive for cocaine, amphetamine, or methamphetamine. The district court subsequently revoked Headrick's supervised release pursuant to 18 U.S.C. Sec. 3583. See id. at 778. In determining an appropriate sentence, the court rejected the imposition of a sentence within the range suggested by the policy statements of Chapter 7 of the Guidelines, and imposed a sentence of twenty-four months imprisonment. See id. at 778-79.

On appeal, Headrick argued that his sentence was imposed in violation of law because the statutory phrase "pursuant to ... the provisions of applicable policy statements" required that the district court follow the policy statements of Chapter 7. The government countered that the statute merely required a sentencing court to consider the policy statements. See id. at 779. We did not resolve this dispute because we determined that 18 U.S.C. Sec. 3583(g) applied to Headrick's revocation. 7 See Headrick, 963 F.2d at 779 ("We find it unnecessary to resolve this dispute and parse the language of Sec. 3583(e)(3), however, because Headrick's case is governed by Sec. 3583(g).").

Mathena contends that Headrick's failure to address the "pursuant to" language in Sec. 3583(e) left open the question of whether the policy statements of Chapter 7 are advisory regarding revocations under that subsection. We disagree. Our refusal to parse the language of Sec. 3583(e) must be placed in the context of the issues we initially confronted in Headrick: (1) whether the defendant's term of supervised release should have been revoked; and (2) whether the defendant should have been sentenced within the range set forth in the policy statements of Chapter 7. That we characterized Headrick's case as being governed by Sec. 3583(g), which requires a district court to revoke a defendant's term of supervised release upon finding that the defendant possessed a controlled substance, enabled us to decide the first issue--i.e., "Headrick was subject to revocation ... regardless of how we might interpret Sec. 3583(e)(3)." Headrick, 963 F.2d at 780 (emphasis added); see also 18 U.S.C. Sec. 3583(e)(3) (providing that a court may revoke a term of supervised release). For the purpose of determining the second issue--i.e., whether the policy statements of Chapter 7 bind courts when imposing a revocation sentence--we did not distinguish Sec. 3583(e) from Sec. 3583(g). See Headrick, 963 F.2d at 780 ("[T]hat the district court revoked Headrick's supervised release pursuant to Sec. 3583(g) rather than Sec. 3583(e)(3) does not obviate our need to decide the extent to which the policy statements of Chapter 7 of the Guidelines Manual bind sentencing courts."). Furthermore, in reaching our conclusion that Congress intended the policy statements of Chapter 7 to be advisory only, we relied on 28 U.S.C. Sec. 994(a)(3), which gave the Sentencing Commission the choice to issue "guidelines or general policy statements regarding the appropriate use of ... the provisions for modification of the term or conditions of supervised release set forth in section 3583(e) of title 18. " See 18 U.S.C. Sec. 994(a)(3) (emphasis added). We therefore did not distinguish Sec. 3583(e) from Sec. 3583(g) when deciding that the policy statements of Chapter 7 are advisory only. Consequently, our broadly-stated holding--i.e., "district courts must consider the policy statements contained in Chapter 7 of the Guidelines when sentencing a defendant upon revoking his supervised release, but that these policy statements are advisory only"--encompassed revocations under both Sec. 3583(e) and Sec. 3583(g). That we came to this conclusion without parsing the language of Sec. 3583(e)(3) suggests at most that we may wish to reconsider en banc our holding in Headrick. 8 The essential fact remains, however, that if we were to accept Mathena's argument on appeal we would be forced to overrule Headrick, in contravention of our prior panel rule. See Pruitt v. Levi Strauss & Co., 932 F.2d 458, 465 (5th Cir.1991) ("In this Circuit one panel may not overrule the decision, right or wrong, of a prior panel in the absence of en banc consideration or superseding decision.").

Even assuming arguendo that Mathena's argument on appeal is still viable after Headrick, we disagree with Mathena's interpretation of Sec....

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