U.S. v. Davis

• Decision Date: 08 May 1995
• Docket Number: No. 94-5474,94-5474
• Citation: 53 F.3d 638
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harold DAVIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 638

53 F.3d 638

UNITED STATES of America, Plaintiff-Appellee, v. Harold DAVIS, Defendant-Appellant.

No. 94-5474.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 2, 1995.

Decided May 8, 1995.

ARGUED: C. Cooper Fulton, Asst. Federal Public Defender, Charleston, WV, for appellant. Michael Lee Keller, Asst. U.S. Atty., Charleston, WV, for appellee. ON BRIEF: Hunt L. Charach, Federal Public Defender, Charleston, WV, for appellant.

Rebecca A. Betts, U.S. Atty., Charleston, WV, for appellee.

Before HALL and LUTTIG, Circuit Judges, and ELLIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Judge ELLIS wrote the opinion, in which Judge HALL and Judge LUTTIG joined.

OPINION

ELLIS, District Judge:

In this appeal, we are presented with the question whether, prior to certain 1994 statutory amendments, Chapter 7 of the United States Sentencing Guidelines was binding on a district court in a supervised release revocation hearing. ¹

I.

Davis pled guilty in July 1991 to an information charging him with cocaine distribution in violation of 21 U.S.C. Sec. 846. At sentencing, in September 1991, the district court granted Davis a downward departure on the ground of aberrant behavior and then sentenced him to five years of supervised probation. Davis' probation did not last long. Within a month, he was arrested after being seen on a college campus carrying a machine gun. The probation violation led to a revocation of probation and a twenty-one month sentence of imprisonment followed by a five year term of supervised release.

After serving his sentence of imprisonment, defendant moved from West Virginia to Memphis, Tennessee and began serving his supervised release term. He was no more successful in this venture than he had been with respect to his earlier probation. Within a short period of time he was charged with shoplifting and murder. The murder charge was dismissed, but he was convicted of shoplifting and sentenced to time served, which amounted to thirty-four days in jail. Defendant then left Tennessee and returned to West Virginia.

Thereafter, an incident occurred in May 1994 that led to the revocation of defendant's supervised release and the related sentencing reviewed here. Specifically, on May 3, 1994, a police officer responding to a disturbance call at a convenience market found defendant in a state of extreme agitation, shouting and threatening to kill the police officer. In the course of this incident, defendant removed his shirt, threw a 13" long, thick-bladed butcher's knife on the ground and challenged the police officer to "Come and get me." Ultimately, the police officer succeeded in subduing defendant and taking him into custody where he remained until his hearing on a petition to revoke his supervised release. ² This petition, as amended, charged defendant with violating the terms of his supervised release by committing three offenses, the January 1994 shoplifting conviction, the May 3, 1994 arrest for threatening a police officer and carrying a dangerous weapon, and a December 1993 controlled substance possession offense resulting from a urine test that was positive for marijuana.

In the course of the hearings on the amended petition, ³ defendant admitted two violations: the state shoplifting conviction and the controlled substance possession violation inferred from the positive urine test. Prior to adjudicating the petition, the district court reduced defendant's supervised release term to three years based on our decision in United States v. Good, 25 F.3d 218 (4th Cir.1994). Thereafter, the district court declined the government's offer to withdraw the allegation of threatening a police officer and proceeded instead to hear evidence concerning this charge. Following this, the district court revoked defendant's supervised release. The district court concluded that the proper imprisonment range was one to two years based on the minimum then provided by 18 U.S.C. Sec. 3583(g) and the maximum provided by 18 U.S.C. Sec. 3583(e)(3). ⁴ In reaching this result, the district court rejected defendant's argument that the Sentencing Guidelines Chapter 7 policy statements limited punishment to the one year mandatory sentence. See U.S.S.G. Sec. 7B1.4(a), (b)(2). The district court concluded that a two year sentence was called for given defendant's danger to the community and to himself. ⁵ Defendant appeals from this sentence.

II.

The Sentencing Guidelines policy statements applicable to violations of probation and supervised release include a table of sentencing ranges. See U.S.S.G. Sec. 7B1.4(a). Under this table, Davis' sentencing range was three to nine months, since he committed a Grade C violation and was in Criminal History Category I. Davis concedes that a sentence within this range was inappropriate because a range of one to two years imprisonment was required by statute. See supra note 4. Yet, the Chapter 7 policy statement also provides that where the statutory minimum sentence exceeds the top of the applicable range, "the minimum term of imprisonment required by statute shall be substituted for the applicable range." U.S.S.G. Sec. 7B1.4(b)(2). In other words, because the one-year statutory minimum was greater than nine months, the Chapter 7 policy statement called for the imposition of a one-year sentence. Davis' complaint is that the district court did not follow the Chapter 7 policy statement, and instead imposed the maximum sentence permitted by the statute, namely two years.

Davis' argument fails for the simple reason that the Chapter 7 policy statements on which he relies are not binding on the courts. They provide helpful assistance to courts in sentencing, but are not mandatory. ⁶ We so held in United States v. Denard, 24 F.3d 599, 602 & n. * (4th Cir.1994), where, as Davis correctly notes, the context was a probation revocation, rather than, as here, a revocation of supervised release. This distinction is not material, for there is no reason in policy or principle to distinguish between probation revocation and supervised release revocation in determining the mandatory or advisory nature of Chapter 7 policy statements. ⁷ Thus, we join all the circuits that have previously considered this issue in holding that Chapter 7 policy statements, prior to the 1994 amendments, ⁸ were not binding in supervised release revocation proceedings ⁹ or probation revocation proceedings. ¹⁰

Davis attempts to distinguish Denard by pointing to differences in the statutes that governed probation revocation and supervised release revocation at the time of his sentencing. The statute then in effect provided that in finding a violation and revoking supervised release, the district court must act "pursuant to ... the provisions of applicable policy statements issued by the Sentencing Commission." 18 U.S.C. Sec. 3583(e)(3) (before 1994 amendment). ¹¹ In Davis' view, this language made clear that Chapter 7 policy statements were binding on district courts in supervised release cases. ¹² This view is ultimately unpersuasive; it places too much weight on ambiguous language. While the ambiguity permits Davis' argument, it does not compel it. On the contrary, given that the statute does not expressly address or alter the advisory or mandatory nature of the policy statements, the phrase is more sensibly read to mean that district courts should act "pursuant to" applicable policy statements by applying those which are mandatory and by considering those which are merely advisory. ¹³

This conclusion finds further support from the fact that Davis' interpretation, while textually plausible, results in nonsensical distinctions between similar proceedings. According to Davis, Congress made the Chapter 7 policy statements binding in supervised release revocation proceedings, but not probation revocation proceedings. Yet, he offers no reason why Congress would enact statutes requiring such a strange result. Yet another nonsensical result of Davis' argument is that, prior to the 1994 amendments, the Chapter 7 policy statements would have been binding only in supervised release revocation cases that did not involve drug possession. ¹⁴ No reason justifies drawing this distinction between supervised release cases involving drugs and those that do not. So, Davis' argument, while not foreclosed by the statute's ambiguous language, would lead to nonsensical results. We therefore reject his argument, for in statutory interpretation, "nothing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd conclusion." In re Chapman, 166 U.S. 661, 667, 17 S.Ct. 677, 680, 41 L.Ed. 1154 (1897); see also Mathena, 23 F.3d at 93. Although the supervised release and probation revocation statutes in effect at the time of Davis' sentencing did not contain identical language, there was no distinction in their text or purpose sufficient to yield the conclusion that Chapter 7's policy statements were binding in one type of proceeding and not the other.

In short, as we previously held in Denard with respect to probation revocation, we hold today, consistent with other circuits, that Chapter 7's policy statements are now and have always been non-binding, advisory guides to district courts in supervised release revocation proceedings. ¹⁵

III.

Finally, Davis maintains that, even if Chapter 7's policy statements were only advisory and not binding, the district court nonetheless erred because it failed even to consider the policy statements before imposing sentence. See 18 U.S.C. Sec. 3583(e); Hill, 48 F.3d at 233; Cohen, 965 F.2d at 61; Headrick, 963 F.2d at 782; Lee, 957 F.2d at 774; United States v. Baclaan, 948 F.2d 628, 631 (9th Cir.1991). The flaw in Davis' argument here is his assumption that the district court did not consider...