U.S. v. Lee

• Decision Date: 19 February 1992
• Docket Number: No. 91-6079,91-6079
• Citation: 957 F.2d 770
• Parties: , 5 Fed.Sent.R. 22 UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Dale LEE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 770

957 F.2d 770

60 USLW 2588, 5 Fed.Sent.R. 22

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Dale LEE, Defendant-Appellant.

No. 91-6079.

United States Court of Appeals Tenth Circuit.

Feb. 19, 1992.

June E. Tyhurst, Asst. Federal Public Defender, Oklahoma City, Okl., for defendant-appellant.

Timothy D. Leonard, U.S. Atty., and Robert G. McCampbell, Asst. U.S. Atty., Oklahoma City, Okl., for plaintiff-appellee.

Before LOGAN, MOORE and BALDOCK, Circuit Judges.

LOGAN, Circuit Judge.

This appeal presents the question whether the policy statements of Chapter 7 of the United States Sentencing Guidelines (U.S.S.G.) regarding supervised release are mandatory and binding or whether they are advisory statements that the court is required merely to consider at the time of sentencing. We hold that the policy statements of the U.S.S.G. must be considered by the sentencing court but that they are advisory in nature. For the reasons set forth below, we affirm the district court. ¹

Defendant Jimmy Dale Lee was originally sentenced in August 1988, after conviction for unlawful possession of a firearm, to fifteen months imprisonment followed by two years of supervised release. The conditions of defendant's supervised release required that he submit to drug tests and refrain from illegal drug use. Defendant tested positive for methamphetamine in September 1989, and was ordered to reside in a halfway house for drug treatment. He successfully completed the program, left the halfway house, and enrolled in a drug aftercare program. In January 1991, defendant again tested positive for cocaine metabolite. As a result of this second violation of a condition of his supervised release, the district court revoked his supervised release and sentenced him to twenty-four months imprisonment, explaining:

The Court recognizes that to his credit [defendant] has conformed with a number of the rules and conditions of his supervised release, however this is a case where the history of this defendant is a poor one. The Court has had conversations with this defendant personally previously on the record advising him that if he were to test dirty with respect to narcotics, he would indeed go to prison and he would go to prison for a substantial period of time. The Court placed a great degree of trust in this defendant by adopting the course of conduct that I adopted previously but I left this defendant with no questions whatsoever as to what would happen if he appeared before me again in this capacity. He has now appeared before me again in that capacity and it's the judgment of this Court that his term of supervised release is hereby revoked and he is ordered to serve 24 months in the custody of the Bureau of Prisons.

III R. 14-15.

Defendant challenges the length of his sentence, arguing that under U.S.S.G. § 7B1.4 (policy statement), the appropriate sentence would have been only three to nine months imprisonment. ² The government counters that the district court was not bound by the policy statements of Chapter 7 in the Sentencing Guidelines and that defendant's sentence was appropriate for his circumstance and individual history.

We will consider these issues in reverse order: first, whether the policy statements of U.S.S.G. Chapter 7 are mandatory or advisory, and second, whether the length of defendant's sentence was unreasonable under the circumstances of the case. We review the district court's interpretation of the sentencing guidelines de novo, while we accept its application of the guidelines to the facts unless clearly erroneous. United States v. Whitehead, 912 F.2d 448, 450 (10th Cir.1990).

The courts that have commented have regarded the U.S.S.G.'s policy statements as not carrying the same imperative as the guidelines themselves. ³ See, e.g., United States v. Blackston, 940 F.2d 877, 893 (3d Cir.) ("Chapter 7 policy statements are not 'guidelines.' Whereas guidelines are binding on the courts, policy statements are merely advisory."), cert. denied, --- U.S. ----, 112 S.Ct. 611, 116 L.Ed.2d 634 (1991); United States v. Pharr, 916 F.2d 129, 133 n. 6 (3d Cir.1990) ("We recognize that policy statements are not binding in the same way as the actual guidelines."), cert. denied, --- U.S. ----, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991); see also United States v. Oliver, 931 F.2d 463, 465 (8th Cir.1991) (noting, "there are no binding guidelines addressing the sentence for a violation of a condition of supervised release, only a policy statement about a court's options in such a situation"); United States v. Ayers, 946 F.2d 1127, 1130 (5th Cir.1991) (implying that policy statements are not binding). In United States v. Gutierrez, 908 F.2d 349 (8th Cir.1990), in dissenting to a panel opinion later vacated by an equally divided en banc court, see 917 F.2d 379 (8th Cir.1990), Judge Heaney explained:

Congress directed the Sentencing Commission to establish guidelines and policy statements. 28 U.S.C. § 994. The statute is silent as to what force the policy statements were to have. Nonetheless, Congress must have envisioned a difference between guidelines and policy statements or it would not have made the distinction.

908 F.2d at 353.

Review of the subsections of 18 U.S.C. § 3553 and of 18 U.S.C. § 3583 confirms that policy statements are to be treated differently than guidelines. Compare 18 U.S.C. § 3553(b), entitled "Application of guidelines in imposing a sentence" ("The court shall impose a sentence of the kind, and within the range referred to ...") (emphasis added), with 18 U.S.C. § 3553(a)(5), entitled "Factors to be considered in imposing a sentence" ("any pertinent policy statement issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2) that is in effect on the date the defendant is sentenced") (emphasis added). In § 3583(e), Congress specifically recited that "[t]he court may, after considering the factors set forth in section ... [3553](a)(5)," terminate, extend, revoke, or modify a term of supervised release pursuant to the terms of this section. (emphasis added).

The policy statements at issue here are especially amenable to a flexible and considered application. They arise from the supervised release provisions of 18 U.S.C. § 3583.

In passing § 3583, Congress sought to replace a parole system in which the length of post-incarceration supervision was dependent upon the length of the original prison term with a supervised release system in which the length of such supervision is dependent solely on the defendant's need for supervision after release from jail.

United States v. Dillard, 910 F.2d 461, 466 (7th Cir.1990) (quoting United States v. Montenegro-Rojo, 908 F.2d 425, 432 (9th Cir.1990)); see U.S.S.G. Ch. 7, Pt. A2(a), (b) intro. comment.; S.Rep. No. 225, 98th Cong., 2d Sess. 122-24, reprinted in 1984 U.S.C.C.A.N. 3182, 3305-06.

The introduction to Chapter 7 contains explicit statements about the nascent quality of its provisions.

At this time, the Commission has chosen to promulgate policy statements only. These policy statements will provide guidance while allowing for the identification of any substantive or procedural issues that require further review. The Commission views these policy statements as evolutionary and will review relevant data and materials concerning revocation determinations under these policy statements. Revocation guidelines will be issued after federal judges, probation officers, practitioners, and others have the opportunity to evaluate and comment on these policy statements.

U.S.S.G. Ch. 7, Pt. A1; see also id. Pt. A5; United States v. Boling, 947 F.2d 1461, 1462 (10th Cir.1991) ("In dealing with violations of supervised release the Sentencing Commission chose to issue policy statements rather than guidelines, in order to permit evaluation after experience with the new supervised release concept."); Blackston, 940 F.2d at 893.

We hold that under 18 U.S.C. § 3583 and U.S.S.G. Ch. 7 Pt. A1 & A5, the policy statements regarding revocation of supervised release contained in Chapter 7 of the U.S.S.G. are advisory rather than mandatory in nature. This holding is specifically limited to U.S.S.G. Ch. 7. Other policy statements in the Sentencing Guidelines must be examined separately in the context of their statutory basis and their accompanying commentary. We see no conflict between our holding today and our cases applying and interpreting U.S.S.G. § 5K1.1, which is also a policy statement. See, e.g., United States v. Long, 936 F.2d 482, 483 (10th Cir.) (Section 5K1.1's requirement of an actual motion by the prosecution to allow for downward departure due to substantial assistance by the defendant is a jurisdictional requirement.), cert. denied, --- U.S. ----, 112 S.Ct. 662, 116 L.Ed.2d 753 (1991); United States v. Vargas, 925 F.2d 1260, 1267 (10th Cir.1991) (Section 5K1.1's motion requirement "is an unequivocal condition precedent; the court may not act sua sponte in such matters."); United States v. Kuntz, 908 F.2d 655, 657 (10th Cir.1990) (Section 5K1.1 requires a motion by the prosecution.). Section 5K1.1 is part of Chapter 5 of the U.S.S.G.; Chapter 5's commentary does not evince the same advisory tone found in Chapter 7's introduction. Also, the language in § 5K1.1 found mandatory by our court, is taken directly from 18 U.S.C. § 3553(e) which the policy statement implements. In Kuntz, we noted the direct correspondence.

Section 5K1.1 provides that "[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." (emphasis added). The section implements 18 U.S.C. § 3553(e), which provides that "[u]pon motion of the Government, the court shall have authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the...