United States v. Troy Lee Brooks, 976 F.2d 1358, 10th Cir. (1992)
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Scribd Government DocsUnited States v. Troy Lee Brooks, 976 F.2d 1358, 10th Cir. (1992)
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Scribd Government Docs976 F.
2d 1358
UNITED STATES of America, Plaintiff-Appellee,
v.
Troy Lee BROOKS, Defendant-Appellant.
No. 91-5144.
United States Court of Appeals,
Tenth Circuit.
Oct. 8, 1992.
1
Stephen J. Greubel, Asst. Public Defender, Tulsa, Okl., for defendant-appellant.
Tony M. Graham, U.S. Atty., and Susan Pennington, Asst. U.S. Atty., Tulsa,
Okl., for plaintiff-appellee.
Before ANDERSON and BRORBY, Circuit Judges, and CAMPOS * , District
Judge.
CAMPOS, District Judge.
This appeal presents the question of whether the court, imposing sentence upon
the revocation of supervised release, improperly failed to consider or apply
policy statements promulgated by the United States Sentencing Commission
and set forth in Chapter 7 of the United States Sentencing Guidelines
("U.S.S.G."). We adhere to our earlier holding that the policy statements of the
U.S.S.G. must be considered by the sentencing court but are advisory in nature.
The sentence imposed by the district court will be affirmed.
Defendant, Troy Lee Brooks, pleaded guilty to violating 18 U.S.C. 473 and,
on January 6, 1989, was sentenced to a term of one year imprisonment and
three years supervised release. On October 2, 1990, the United States Probation
Office filed a petition requesting revocation of defendant's supervised release.
The sentencing court held an evidentiary hearing and found that defendant had
violated the conditions of release. The Court deferred sentencing for so long as
defendant complied with certain conditions.
On August 5, 1991, the United States Probation Office filed a new petition
requesting revocation of supervised release. At an evidentiary hearing on
August 20, 1991, the court announced that it would impose the sentence it had
earlier deferred.
8
Pursuant to U.S.S.G. 7B1, the United States Probation Office calculated that
defendant had committed a Grade C violation and had a Criminal History
Category of IV, warranting a range of imprisonment of six to twelve months.
The court, however, announced its intention to depart upward and gave counsel
one day to provide briefing on the law applicable to such an upward departure.
On August 21, 1991, the court sentenced defendant to two years imprisonment.
10
Prior to sentencing, the court had been advised of the law applicable to
sentencing upon revocation of supervised release. Both defense counsel and the
United States Probation Office had referred the court to the U.S.S.G. policy
statements that for a Grade C violation and a Criminal History Category IV, the
maximum term of imprisonment is twelve months.
11
In imposing sentence, the court addressed the applicable policy statements,
observing that "the commissions's policy statements are only that, they are only
policy statements, they are not binding on the court." (Transcript of
Proceedings, 8/12/91, p. 6).
12
Defendant challenges the length of his sentence, arguing that under U.S.S.G.
7B1, the appropriate range of imprisonment was six to twelve months.
13
In our recent opinion, United States of America v. Lee, 957 F.2d 770 (10th
Cir.1992), we addressed the identical issue. In that case, as here, the sentencing
court departed upward from the imprisonment range set out in U.S.S.G. 7B1,
but did not exceed the maximum sentence allowed by statute. See 18 U.S.C.
3583(e).1 In Lee, we recognized that under 18 U.S.C. 3553 and 3583, policy
statements are to be treated differently than guidelines and that the policy
statements in Chapter 7 of the U.S.S.G. "are advisory rather than mandatory in
nature." United States of America v. Lee, 957 F.2d at 773. We noted that the
imprisonment ranges set out in Chapter 7 are not compelled by the underlying
statute.
14
We have recognized that the policy statements promulgated by the United
States Sentencing Commission must be considered by the trial sentencing court
in imposing punishment for violation of the terms and conditions of supervised
release. See 18 U.S.C. 3553(a) ("The court, in determining the particular
sentence to be imposed, shall consider ... any pertinent policy statement issued
by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2)) (emphasis
added). However, while the district court must consider the policy statements,
the court is not bound by them. See United States of America v. Blackston, 940
F.2d 877 (3rd Cir.1991) (The court determined that a district court had properly
sentenced a defendant to three years imprisonment, although the policy
statement in Chapter 7 recommended a four to seven month range. The court
held that policy statements are merely advisory and, unlike guidelines, are not
binding on the courts).
15
In this case, the district court appropriately considered and rejected the
recommended range contained in Chapter 7 of the U.S.S.G. In Lee, we
observed:
16
While
'there is no requirement that the district court make specific findings relating
to each of the factors considered,' United States v. Graves, 914 F.2d 159, 160 (8th
Cir.1990), the sentencing court should state its reasons for its action. See 18 U.S.C.
3553(c).
17
United States of America v. Lee, 957 F.2d at 774. The district court clearly
demonstrated its awareness of the U.S.S.G. 7B1.1 policy statements and,
having demonstrated that awareness, requested counsel to brief the law on an
upward departure from the range of sentences noted in the policy statements.
After briefing, the court quite clearly stated its reasons for imposing the twoyear sentence. 2 The district court amply observed all the requirements of Lee.
18
The district court's sentence was reasoned and reasonable. The trial judge
solicited briefing on his intention to depart upward from the U.S.S.G. policy
statements and made a considered determination that, given the defendant's
prior conduct, such departure was warranted. The basis for upward departure
included repeated violations of the terms of supervised release after the district
court had given defendant opportunity to alter his behavior and had deferred
revocation of supervised release. The district court's basis for imposing a twoyear sentence was satisfactory under the terms of 18 U.S.C. 3553.
19
AFFIRMED.
The Honorable Santiago E. Campos, United States District Judge for the
District of New Mexico, sitting by designation
Title 18 U.S.C. 3583 states as follows:
(e) Modification of conditions or revocation--The court may, after considering
the factors set forth in section 3553(a)(1), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
and (a)(6)-(3) revoke a term of supervised release, and require the person to serve in
prison all or part of the term of supervised release without credit for time
previously served on postrelease supervision, 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, except that a person whose term is
revoked under this paragraph may not be required to serve more than three
years in prison if the offense for which the person was convicted was a Class B
felony, or more than 2 years in prison if the offense was a Class C or D felony.
The sentencing judge stated the basis for the upward departure as follows:
We look back in time and the desire of everyone was to get you an opportunity
to develop a skill that would give you a chance in life to make a good living and
to work and to get these past problems behind you, and that was everybody's
desire. Your response to that was to go back on the street in an environment
that involved association with the worst elements in the community, people that
you should have avoided like the plague, and a continuing refusal to comply
with the conditions that have been extended to you. And that's what is of
concern to the Court and that's why the Court is taking the action is because
everything that was done with great regard for you personally and for your
condition and for your history was rejected. The only reason I'm acting in the
way I propose to act is because of that rejection....
