U.S. v. Headrick

• Decision Date: 11 June 1992
• Docket Number: No. 91-1854,91-1854
• Citation: 963 F.2d 777
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Thomas Gerald HEADRICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 777

963 F.2d 777

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. Thomas Gerald HEADRICK, Defendant-Appellant.

No. 91-1854.

United States Court of Appeals, Fifth Circuit.

June 11, 1992.

Peter Fleury, Asst. Federal Public Defender and Ira R. Kirkendoll, Federal Public Defender, Ft. Worth, Tex., for defendant-appellant.

Richard B. Roper, Asst. U.S. Atty. and Marvin Collins, U.S. Atty., Ft. Worth, Tex., for plaintiff-appellee.

Appeal from the United States District Court For the Northern District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Thomas Headrick appeals the sentence imposed upon revocation of his supervised release as inconsistent with the relevant policy statements of the Sentencing Guidelines. We conclude that the district court was not obligated to follow those policy statements and affirm.

I.

In September 1989, following conviction on a firearms violation, the district court for the Western District of Texas sentenced appellant Headrick to twelve months imprisonment to be followed by three years of supervised release. Headrick began serving his term of supervised release in September 1990. The conditions of supervised release required Headrick to refrain from possessing or using any controlled substance. On sixteen occasions between January and July 1991, Headrick submitted urine specimens that tested positive for cocaine, amphetamine, or methamphetamine.

In August 1991, following a hearing, the district court for the Northern District of Texas ¹ revoked Headrick's supervised release pursuant to 18 U.S.C. § 3583. The district court then considered the sentencing range of 12-18 months imprisonment contained in the policy statements of Chapter 7 of the Sentencing Guidelines. It rejected imposition of sentence in that range, however, and imposed a sentence of twenty-four months. Headrick appeals that sentence.

II.

We review the district court's interpretation of statutes and the Guidelines de novo, but its application of the Guidelines to the facts for clear error. United States v. Gaitan, 954 F.2d 1005, 1008 (5th Cir.1992). 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. 18 U.S.C.A. § 3742(e) (West, Supp.1992). There are no applicable guidelines for sentencing after revocation of supervised release; there are only policy statements. See U.S. Sentencing Commission, Guidelines Manual Ch. 7 "Violations of Probation and Supervised Release" (Nov.1990). It follows that we will uphold Headrick's sentence unless it is in violation of law or is plainly unreasonable.

A.

We first consider whether Headrick's sentence is in violation of law because of his suggestion that the Guideline policy statements bind a district court when sentencing a defendant after revoking a term of supervised release. This is the first time we have given plenary review to this question. This court has held previously that a district court's failure to follow the policy statements of Chapter 7 is not plain error. United States v. Ayers, 946 F.2d 1127, 1130-31 (5th Cir.1991); United States v. Montez, 952 F.2d 854, 859-60 (5th Cir.1992).

Supervised release is governed by 18 U.S.C. § 3583. Headrick focuses considerable attention on § 3583(e)(3). Under that section, a district court may revoke a term of supervised release and order a defendant imprisoned "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." ² Headrick contends that the phrase "pursuant to the ... applicable policy statements" requires the district court to follow the policy statements; the government maintains that the statute merely requires the district court to consider the policy statements. We find it unnecessary to resolve this dispute and parse the language of § 3583(e)(3), however, because Headrick's case is governed by § 3583(g).

Section 3583(g) requires a district court to revoke a defendant's term of supervised release upon finding that the defendant possessed a controlled substance. ³ The district court specifically found that Headrick had possessed controlled substances and that it "ha[d] no choice but to revoke" his term of supervised release under § 3583(g). Headrick has not objected to this finding. Thus Headrick was subject to revocation of his term of supervised release regardless of how we might interpret § 3583(e)(3).

But the fact that the district court revoked Headrick's supervised release pursuant to § 3583(g) rather than § 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. Section 3583(g) required the district court to sentence Headrick to at least twelve months imprisonment (one-third of his term of supervised release). Section 3583(g) does not specify a maximum sentence. The district court sentenced Headrick to twenty-four months imprisonment. This exceeds the range of 12-18 months provided by the Guideline policy statements. U.S.S.G. § 7B1.4. Thus we still must decide whether the district court was obligated to follow the policy statements, as Headrick suggests.

Congress requires the United States Sentencing Commission to issue both "guidelines" and "general policy statements regarding application of the guidelines" in performing its duties. 28 U.S.C. §§ 994(a)(1) and (2). Headrick would have us hold that policy statements are as binding on the courts as the guidelines themselves. That Congress differentiates between guidelines and policy statements, however, suggests that the two are not to be given equal weight. Relatedly, we have held that policy statements "do not have the force of the Guidelines," although we have not yet decided what force they do carry. United States v. Montez, 952 F.2d 854, 859 (5th Cir.1992). Today we hold that 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.

Congress treats policy statements and guidelines differently. Section 3553(b) requires a sentencing court to "impose a sentence of the kind, and within the range, referred to in" the guidelines, unless an adequate basis for departure exists. 18 U.S.C. § 3553(b) (emphasis added). In contrast, section 3553(a)(5) requires a sentencing court merely to "consider ... any pertinent policy statement" when sentencing. 18 U.S.C. § 3553(a)(5) (emphasis added); Ayers, 946 F.2d at 1130; Montez, 952 F.2d at 859. Either party may appeal a sentence imposed as a result of an incorrect application of a guideline. 18 U.S.C.A. §§ 3742(a)(2) and (b)(2) (West, 1985 and Supp.1992). No similar appeal lies for an incorrect application of a policy statement. See S. Rep. No. 98-225, 98th Cong., 2d Sess. 167, reprinted in 1984 U.S.C.C.A.N. 3182, 3350 ("It should be noted that a sentence that is inconsistent with the sentencing guidelines is subject to appellate review, while one that is consistent with the guidelines but inconsistent with the policy statements is not."). The Sentencing Commission must submit for Congress's approval amendments to the guidelines, but not amendments to policy statements. 28 U.S.C. § 994(p); United States v. Kelley, 956 F.2d 748, 753 (7th Cir.1992). The legislative history accompanying the Crime Control Act of 1984 confirms that Congress intended the policy statements to "supplement" the guidelines to "further the ability of the Federal criminal justice system to achieve the purposes of sentencing." Id. at 51, 165, reprinted in 1984 U.S.C.C.A.N. at 3234, 3348-49. We are satisfied, then, that Congress did not intend policy statements generally to have the same binding effect as guidelines.

Headrick contends that this court previously has treated policy statements as binding. In United States v. White, 945 F.2d 100 (5th Cir.1991), we vacated the district court's downward departure based on the defendant's youth as inconsistent with § 5H1.1 of the Guidelines, a policy statement. We do not consider our decision today as inconsistent with White. First, the White court did not even mention that § 5H1.1 is a policy statement, nor compare the force of policy statements to guidelines. Second, White involved a departure from a guideline sentence and a different set of policy statements. In § 3553(b), Congress sharply curtailed a district court's ability to sentence a defendant below the applicable guideline range. It limited such discretion to situations where "there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b). In determining whether a circumstance was adequately taken into consideration, Congress directs courts to "consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." Id. (emphasis added). The policy statement of § 5H1.1 reflects the Commission's consideration of youth in its scheme. Thus the White court was correct to follow § 5H1.1. "Where ... a policy statement prohibits a district court from taking a specified action, the statement is an authoritative guide to the meaning of the applicable guideline." Williams v. United States, 503 U.S. ----, ----, 112 S.Ct. 1112, 1119, 117 L.Ed.2d 341, 353 (1992).

Thus, although policy statements generally do not have the force of guidelines, particular policy statements...