United States v. Jackson ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 10 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 98-7044
v. (E.D. Okla.)
RICKY LEE JACKSON, (D.C. No. CR-92-22-S)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining Defendant-Appellant’s brief and the 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.
On May 29, 1992, Defendant pled guilty to violating 18 U.S.C. § 922(a)(6).
He was sentenced to twenty-seven months’ imprisonment, to be followed by three
years of supervised release. Defendant’s supervised release began on October 4,
*
This order and judgment is not binding precedent, except under the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.
1995. On January 21, 1998, the United States Probation Office filed a petition for
the revocation of Defendant’s supervised release, alleging several violations of
the supervised release. At a subsequent hearing on March 17, 1998, Defendant
admitted that he had committed five of the six alleged violations of his supervised
release. The district court found that Defendant had violated at least five
conditions of his supervised release and revoked his supervised release. The
court sentenced Defendant to twenty-four months’ imprisonment, the maximum
statutory term allowable under 18 U.S.C. § 3583(e)(3). Defendant challenges the
court’s imposition of a sentence that exceeds the range recommended in United
States Sentencing Guidelines § 7B1.4(a) for violations of the terms of his
supervised release. Counsel for Defendant filed a motion to withdraw
accompanied by an Anders brief. See 10th Cir. R. 46.4.2; Anders v. California,
386 U.S. 738 (1967).
We review a sentencing court’s factual findings underlying the application
of the guidelines for clear error and its interpretation and application of the
guidelines de novo. See United States v. Davis, 151 F.3d 1304, 1308 (10th Cir.
1998); United States v. Pappert, 112 F.3d 1073, 1078 (10th Cir. 1997).
Defendant’s argument focuses on the district court’s decision to “depart” from the
recommended sentence range. In accordance with Defendant’s criminal history
category V and grade C violations, U.S.S.G. § 7B1.4(a) recommends a range of
-2-
seven to thirteen months’ imprisonment upon revocation of supervised release.
The court stated that it had considered the policy statements in Chapter 7 of the
guidelines recommending seven to thirteen months but believed that these
provisions were advisory in nature. Consequently, the court sentenced Defendant
to twenty-four months’ imprisonment pursuant to 18 U.S.C. § 3583(e)(3). Prior
decisions of this court foreclose Defendant’s argument that the court was obliged
to follow the recommended guideline range for revocation of supervised release.
We held in United States v. Lee, 957 F.2d 770, 773 (10th Cir. 1992), that “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.” See also United
States v. Hurst, 78 F.3d 482, 483-84 (10th Cir. 1996) (reaffirming Lee and
advisory nature of Chapter 7 provisions in light of two Supreme Court cases).
Lee requires the sentencing court to consider the policy provisions “in its
deliberations concerning punishment for violation of conditions of supervised
release.” Lee, 957 F.2d at 774. In addition, the determination of sentence must
be “reasoned and reasonable.” Id. Because the court took the policy statements
into consideration, see R., Vol. II at 11, and because we cannot determine from
the record that the sentencing decision was anything but “reasoned and
reasonable,” Lee, 957 F.2d at 774, we affirm Defendant’s sentence under 18
U.S.C. § 3583(e)(3). See Hurst, 78 F.3d at 484. We also grant Counsel’s Motion
-3-
to Withdraw.
AFFIRMED and GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
-4-