U.S. v. McClanahan

• Decision Date: 18 February 1998
• Docket Number: No. 97-2420,97-2420
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Donald E. McCLANAHAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1146

136 F.3d 1146

UNITED STATES of America, Plaintiff-Appellee, v. Donald E. McCLANAHAN, Defendant-Appellant.

No. 97-2420.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 28, 1998.

Decided Feb. 18, 1998.

Frances C. Hulin, Estaban F. Sanchez (argued), Office of the United States Attorney, Springfield, IL, for Plaintiff-Appellee.

Allen E. Shoenberger, Christopher Antonow (argued), Loyola University School of Law, Chicago, IL, for Defendant-Appellant.

Before ESCHBACH, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

Donald McClanahan violated the terms of his supervised release from prison. At the revocation hearing, the court imposed a sentence of twenty-four months imprisonment, the maximum term permissible under the controlling statute. See 18 U.S.C. § 3583(e)(3). McClanahan appeals, arguing that the court erred in interpreting the relevant statutes and Sentencing Guidelines policy statements; failed to properly articulate the basis for its sentence; and likewise failed to provide notice that the court was considering an "upward sentencing departure." McClanahan's arguments are premised on a misunderstanding of the advisory nature of the policy statements contained in Chapter Seven of the Sentencing Commission's Guidelines Manual. See U.S.S.G., ch. 7, pt. A; id. at § 7B1.4(a). We therefore affirm the sentence imposed by the district court.

I. FACTUAL BACKGROUND

Five years ago, Donald McClanahan was charged with and pleaded guilty to three counts of distributing crack cocaine in violation of 21 U.S.C. § 841(a)(1). He promptly entered a plea agreement with the government; in return, the government recommended a two-level base offense level reduction for acceptance of responsibility and a twenty-four month sentence. The court accepted the parties' joint recommendation and sentenced McClanahan to twenty-four months imprisonment, to be followed by a three-year period of supervised release. As a condition of his release, McClanahan promised that he would "not commit another Federal, State, or local crime during the term of supervision and that [he would] not unlawfully possess a controlled substance." 18 U.S.C. § 3583(d). The court also ordered him to participate in a substance abuse program, submit to periodic urinalysis for the presence of drugs, and promptly report to the Probation Office any violation of the terms of his release.

McClanahan began his period of supervised release on February 8, 1994. He was arrested, however, on June 2, 1996, for aggravated battery, resisting a police officer and possession of a controlled substance. The police had responded to a complaint of a disturbance; upon their arrival, a "physical altercation ensued between the defendant and one of the officers," at which point McClanahan threw away a small ziplock plastic bag and attempted to flee. He was subdued by force (the officers had to use pepper spray before handcuffing McClanahan) and the plastic bag retrieved. It contained cocaine. A jury subsequently convicted McClanahan of unlawful possession of a controlled substance in violation of 720 ILCS 570/402(c), a Class IV felony under Illinois law.

In the interim, the Probation Office filed a Petition for Summons, alleging that McClanahan had committed a criminal offense while on supervised release. The petition also alleged that he had failed repeatedly to be present for scheduled visits with his probation officer, to produce scheduled urine samples, and to timely report his arrest to the Probation Office. At the revocation hearing, McClanahan acknowledged his arrest and conviction, whereupon the government withdrew its allegations concerning the other violations. A "close-out criminal history check" conducted by the Probation Office on the morning of the hearing, however, revealed that the defendant had failed to report an additional arrest that had taken place prior to the revocation-triggering incident, an episode involving the sale by McClanahan of crack cocaine to a confidential informant.

At sentencing, the court expressed its disappointment with the defendant's decision to return to crime. After hearing argument both from the government and the defendant regarding the applicable Revocation Table range, discretionary departure provisions and controlling case law, the court revoked McClanahan's supervised release and imposed a twenty-four month term of imprisonment, the maximum period permissible under 18 U.S.C. § 3583(e)(3).

On appeal, the defendant raises three arguments: (a) the court erred in sentencing him to a term of imprisonment greater than 10 months, the high end of the Revocation Table range for his violation grade; (b) the court failed to justify its sentencing "departure"; and (c) he was not properly forewarned that the court was contemplating such a severe sentence.

II. STANDARD OF REVIEW

The district court's interpretation of the sentencing provisions in the Guidelines is aquestion of law and is reviewed de novo. See United States v. Lee, 78 F.3d 1236, 1239 (7th Cir.1996). A defendant's revocation sentence is subject to review under the "plainly unreasonable" standard because "no guideline establishes a mandatory range of such a sentence." United States v. Hale, 107 F.3d 526, 529 (7th Cir.1997); see also 18 U.S.C. § 3742(a)(4).

III. DISCUSSION

McClanahan's arguments are predicated on a misperception of the nature of Chapter Seven of the Sentencing Guidelines Manual, which deals with the revocation of supervised release. In his view, his sentence is controlled by guidelines that prescribe narrow, strictly binding ranges, and that any deviation from the Guidelines' Revocation Table requires extraordinary circumstances absent here. See U.S.S.G. § 7B1.4(a).

The Sentencing Commission is provided the authority under 28 U.S.C. § 994(a)(3) to issue guidelines or policy statements addressing revocation of supervised release. For a number of reasons, the Commission chose to issue interim policy statements which, while offering "guidance" to the sentencing courts, nevertheless permit greater "flexibility" than guidelines. These policy statements are seen as "evolutionary" and tentative; after an appropriate period of information gathering, the Commission anticipates promulgation of formal revocation guidelines. U.S.S.G., ch. 7, pt. A, §§ 1, 3(a), 5; see also United States v. Hurst, 78 F.3d 482, 484 (10th Cir.1996); United States v. West, 59 F.3d 32, 34 (6th Cir.1995); 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. Hooker, 993 F.2d 898, 900 (D.C.Cir.1993); United States v. Cohen, 965 F.2d 58, 60-61 (6th Cir.1992); United States v. Blackston, 940 F.2d 877, 893 (3d Cir.1991).

Guidelines commentary is generally an authoritative interpretation of the rules contained therein. See Stinson v. United States, 508 U.S. 36, 38, 45, 113 S.Ct. 1913, 1915, 1919, 123 L.Ed.2d 598 (1993). Nonetheless, numerous post-Stinson courts have concluded that the Chapter Seven provisions are merely advisory rather than mandatory, subject to the statutory maximum terms of imprisonment ("caps") provided in 18 U.S.C. § 3583(e)(3). See, e.g., United States v. Pelensky, 129 F.3d 63, 69 (2d Cir.1997); United States v. Doss, 79 F.3d 76, 78 (7th Cir.1996); Hurst, 78 F.3d at 483-84 (collecting cases); United States v. Milano, 32 F.3d 1499, 1502-03 (11th Cir.1994); United States v. Mathena, 23 F.3d 87, 93 (5th Cir.1994). As this court explained in United States v. Hill, not all commentary interprets a guideline. 48 F.3d 228, 231 (7th Cir.1995). The policy statements contained in Chapter Seven are of this sort: they are "neither guidelines nor interpretations of guidelines." Id.; accord, Anderson, 15 F.3d at 283-84. Rather, they "tell the district court how to exercise his discretion in the area left open by the guidelines and the interpretive commentary on the guidelines." Hill, 48 F.3d at 231. While the Chapter Seven policy statements are entitled to "great weight," they do not bind the sentencing judge; while they are an "element in his exercise of discretion," they are not a substitute for that discretion. Id.; accord, United States v. Davis, 53 F.3d 638, 640-41 & n. 6 (4th Cir.1995).

The Commission has provided a Revocation Table and advice to assist a sentencing court in the calculus of revocation. See U.S.S.G., ch. 7, pt. A-B; id. at § 7B1.4; Lee, 78 F.3d at 1239; United States v. McGee, 60 F.3d 1266, 1267 n. 1, 1270-71 (7th Cir.1995). By matching the "grade" assigned the supervised release violation, U.S.S.G. § 7B1.1 (a)(2) & comment. (n.1), and the defendant's criminal history category at the time of his original sentencing, see id. at § 7B1.4, comment. (n.1), the court is steered to a particular sentencing range, see id. at § 7B1.4(a). For McClanahan, his grade B revocation violation and his criminal history category of I result in a suggested sentencing range of four to ten months. See id.

In addition to the advisory ranges set out in the Table, Congress has imposed a statutory cap for each range. See 18 U.S.C. § 3583(e)(3); see also U.S.S.G., ch. 7, pt. A, § 3(b); id. at § 7B1.4(b). Each cap represents the maximum permissible term of imprisonment to which a defendant may be sentenced following revocation of supervised release; the levels are based on the nature of his original offense. See 18 U.S.C. § 3559(a); U.S.S.G., ch. 7, pt. A, § 3(b). In McClanahan's case, "the term of imprisonment that may be imposed upon revocation of supervised release is limited by statute to ... not more than two years" because his 1992 offense (crack distribution) is classified as a Class C felony. Id.; see also 18 U.S.C. §§ 3559(a)(3), 3583(e)(3); 21 U.S.C. § 841(a)(1). Thus, the sentencing court must consider the relevant range provided in the Table, but it is thereafter "free to impose a sentence outside the designated range, subject to the maximum sentence allowable...