U.S. v. Hill

• Decision Date: 30 January 1995
• Docket Number: No. 94-1723,94-1723
• Citation: 48 F.3d 228
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Wiley HILL, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 228

48 F.3d 228

UNITED STATES of America, Plaintiff-Appellee, v. Wiley HILL, Jr., Defendant-Appellant.

No. 94-1723.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 16, 1994.

Decided Jan. 30, 1995.

Robert L. Michels (argued), Barry Rand Elden, Asst. U.S. Atty., Crim. Receiving, Appellate Div., Chicago, IL, for plaintiff-appellee.

Michael F. Lefkow (argued), Brendan P. Meyer, Chicago, IL, for defendant-appellant.

Before POSNER, Chief Judge, and EASTERBROOK and MANION, Circuit Judges.

POSNER, Chief Judge.

The principal question presented by this appeal is the binding effect of policy statements found in the Guidelines Manual issued by the U.S. Sentencing Commission. Wiley Hill pleaded guilty to stealing the contents of a letter while employed by the Postal Service (the contents being two gold-plated chains worth together about $20) and was sentenced to 12 months in prison to be followed by two years of supervised release. He was released from prison in May 1993. He did not stay out of trouble for long. In August, his probation officer notified the sentencing court that Hill had already violated several conditions of his supervised release, including that he not use cocaine. The government moved to revoke the supervised release. A hearing on the motion was scheduled, but Hill failed to appear. In September, Hill was arrested for disregarding a stop sign, driving with a suspended license, driving an uninsured vehicle, and obstructing justice by giving the arresting officer a false name. On Christmas Eve he was again arrested, this time for stealing more than $150 worth of children's clothing (the report of the arrest indicates that the value was $279.46) from a department store. This escapade resulted in his being prosecuted in an Illinois state court for retail theft, attempted obstruction of justice (he gave a false name when arrested), and forgery. He pleaded guilty to all three of these charges and was sentenced to three years in prison.

In March of 1994 Hill was "writted" into federal court for a hearing on his violations of supervised release. The violations were conceded; the only issue was punishment. The guidelines range applicable to these violations, when Hill's criminal record was taken into account, was 21 to 27 months. U.S.S.G. Secs. 7B1.1(a)(2), 7B1.4(a). The district judge was minded to make the sentence run concurrently with Hill's state sentence, and the government did not object. Then the government discovered United States v. Lewis, 998 F.2d 497 (7th Cir.1993), where a panel of this court had held that all policy statements in the Guidelines Manual are binding on the sentencing judge unless inconsistent with a guideline or with a federal statute. One of these policy statements provides that the judge shall order any term of imprisonment imposed upon the revocation of supervised release to run consecutively to any prison sentence the defendant is serving. U.S.S.G. Sec. 7B1.3(f). Bound as he was by Lewis, the judge sentenced Hill to 21 months and ordered that the sentence be served consecutively to Hill's state sentence. Hill asks us to overrule Lewis.

We naturally are reluctant to overrule a recent decision. No one likes to acknowledge a mistake (the author of this opinion joined the opinion in Lewis ), but adherence to precedent is based on deeper reasons than amour propre--is in fact a cornerstone of Anglo-American adjudication. And the more recent a precedent, the more authoritative it is, because there is less likelihood of significantly changed circumstances that would provide a compelling reason for reassessing the soundness of the precedent. But the circumstances here are unusual.

The panel in Lewis believed its result compelled by Stinson v. United States, --- U.S. ----, ----, 113 S.Ct. 1913, 1917, 123 L.Ed.2d 598 (1993), where the Supreme Court had said that "the principle that the Guidelines Manual is binding on federal courts applies as well to policy statements." Lewis, like the present case, involved a "Chapter 7" policy statement, that is, a policy statement concerning the mode of punishment for violating supervised release. (Supervised release has replaced parole in federal sentencing, and Chapter 7 of the Guidelines Manual is the chapter that deals with supervised release.) The policy statement at issue in Lewis required the substitution of the minimum term of imprisonment required by statute for the maximum of the applicable guidelines range for the violation of supervised release, provided the former exceeded the latter. U.S.S.G. Sec. 7B1.4(b)(2).

Stinson, on which we relied in Lewis, had not involved a policy statement. It had involved an application note defining "crime of violence," a category of offenses for which the guideline specified a punishment range. See U.S.S.G. Sec. 4B1.2, Application Note 2. The Supreme Court had previously held that the Sentencing Commission's commentary interpreting and explaining specific guidelines was, unless inconsistent with a guideline itself or with a federal statute, authoritative even if it appeared in a policy statement rather than in an application note. Williams v. United States, 503 U.S. 193, 199-201, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341 (1992). The policy statement in Williams forbade a sentencing judge, in deciding whether to depart upward because the defendant's record of convictions did not adequately reflect the gravity of the defendant's prior crimes--an explicit basis under the guidelines for an upward departure--to base the departure on a prior arrest record alone. U.S.S.G. Sec. 4A1.3. Stinson merely repeats that the fact that commentary is labeled "policy statement" does not rob it of its authoritative character if, like the policy statement in Williams, it interprets a guideline. Not every policy statement does. The one at issue in the present case, like the one involved in Lewis, does not. It does not tell the sentencing judge how to determine the applicable guideline range. It tells him what to do after he has determined it--ignore it if the minimum term of imprisonment prescribed by statute exceeds the top of the range (Lewis ); make it consecutive (this case). These prescriptions are not interpretive or explanatory of anything.

The Sentencing Reform Act delegated to the Sentencing Commission the task of formulating sentencing guidelines. 28 U.S.C. Sec. 994. When the Commission is exercising this delegated power, the courts cannot interfere or second-guess unless the Commission oversteps constitutional bounds. So the guidelines themselves are authoritative, and since the meaning of a text is its interpretation rather than being a property of the uninterpreted text, the Commission's interpretations of the guidelines are authoritative too. The policy statements in Chapter 7, however, are neither guidelines nor interpretations of guidelines. They tell the district judge how to exercise his discretion in the area left open by the guidelines and the interpretive commentary on the guidelines. Such policy statements are entitled to great weight because the Sentencing Commission is the expert body on federal sentencing, but they do not bind the sentencing judge. Although they are an element in his exercise of discretion and it would be an abuse of discretion for him to ignore them, they do not replace that discretion by a rule.

So at least six circuits have held in the wake of Stinson--every circuit to address the issue, in fact, except ours. United States v. Mathena, 23 F.3d 87, 93 (5th Cir.1994); United States v. Sparks, 19 F.3d 1099, 1101 n. 3 (6th Cir.1994); United States v. Anderson, 15 F.3d 278, 283-84 (2d Cir.1994); United States v. O'Neil, 11 F.3d 292, 301 n. 11 (1st Cir.1993); United States v. Levi, 2 F.3d 842, 845 (8th Cir.1993); United States v. Hooker, 993 F.2d 898, 901 (D.C.Cir.1993). All but the last of these cases were decided after Lewis, and Hooker so shortly before that it did not come to the panel's attention in Lewis and was not cited in our opinion. The distinction between interpretive and noninterpretive policy statements, on which these cases pivot, is not mentioned in Lewis and so cannot be deemed to have been considered and rejected.

Precedents do not cease to be authoritative merely because counsel in a later case advance a new argument. In re Penn Central Transportation Co., 553 F.2d 12, 15 (3d Cir.1977). But as a practical matter an opinion that contains no discussion of a powerful ground later advanced against it is more vulnerable to being overruled than an opinion which demonstrates that the court considered the ground now urged as a basis for overruling. Schiffels v. Kemper Financial Services, Inc., 978 F.2d 344, 351 (7th Cir.1992); cf. United States v. Connor, 926 F.2d 81, 83 (1st Cir.1991).

The distinction drawn by the other circuits appeals to us as a sound one, and we cannot find in Lewis or elsewhere reasons for rejecting it. When a number of other circuits reject a position that we have taken, and no other circuit accepts it, the interest in avoiding unnecessary intercircuit conflicts comes into play; and if we are asked to reexamine our position, we can hardly refuse. Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir.1987); Critical Mass Energy Project v. NRC, 975 F.2d 871, 876 (D.C.Cir.1992); International Society for Krishna Consciousness, Inc. v. Lee, 925 F.2d 576, 580 (2d Cir.1991), aff'd, --- U.S. ----, 112 S.Ct. 2709, 120 L.Ed.2d 669 (1992). That is not to say that reexamination will cause us to relinquish the position. We are not merely to count noses. The parties are entitled to our independent judgment. But if upon conscientious reexamination we are persuaded that the other circuits have the better of the argument, we should abandon our position in order to spare the Supreme Court extra work. That is the situation in which we find ourselves.

We are helped to this conclusion by a change of mind by the government. In response to a...