United States v. Philips , 87 F.3d 1327 ( 1996 )

87 F.3d 1327

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

UNITED STATES of America, Plaintiff-Appellee,
v.
Peter I. PHILIPS, also known as Emaraobebi Idaba, Defendant-Appellant.

No. 95-6310.

United States Court of Appeals, Tenth Circuit.

June 25, 1996.

Before EBEL, BARRETT, and HENRY, Circuit Judges.

ORDER AND JUDGMENT*

BARRETT, Circuit Judge.

1

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

2

Defendant Peter Philips pled guilty to one count of making false statements on a loan application in August 1992. The district court sentenced him to 149 days' imprisonment, which was the amount of time already served at the time of sentencing, followed by three years of supervised release. In July 1995, defendant pled guilty to mail fraud. Based on this subsequent conviction, the district court revoked defendant's supervised release. Although application of the policy statements in Chapter Seven of the sentencing guidelines would yield a sentence in the range of four to ten months for the original conviction, see U.S.S.G. § 7B1.4(a), the district court sentenced defendant to twenty-four months' imprisonment, the maximum permitted by statute. Defendant appeals this sentence, arguing that the policy statements should be treated as binding on the district court, absent "extraordinarily compelling reasons" for departure, which he contends are not present in this case. Appellant's Br. at 5.

3

We recently considered and rejected a similar argument in United States v. Hurst, 78 F.3d 482, 483-84 (10th Cir.1996). After considering the effect of the Supreme Court's opinions in Stinson v. United States, 508 U.S. 36 (1993), and Williams v. United States, 503 U.S. 193 (1992), on our earlier decisions, we reaffirmed our holding in United States v. Lee, 957 F.2d 770, 773-74 (10th Cir.1992), that the policy statements in Chapter Seven concerning the revocation of supervised release are only advisory, and that a trial court's decision to impose a sentence in excess of that recommended by the policy statements will not be reversed " 'if it can be determined from the record to have been reasoned and reasonable.' " Hurst, 78 F.3d at 483-84 (quoting Lee, 957 F.2d at 774). The record here reflects that the district court articulated a number of reasons for its decision to impose a sentence in excess of that recommended in U.S.S.G. § 7B1.4(a). As the district court's decision appears to be both "reasoned and reasonable," Lee, 957 F.2d at 774, it must be upheld.

4

The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.

*

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3