United States v. Hill ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4366
ROBERT LEE HILL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
Charles H. Haden II, Chief District Judge.
(CR-93-217)
Submitted: October 31, 1997
Decided: November 18, 1997
Before HALL and ERVIN, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Hunt L. Charach, Federal Public Defender, George H. Lancaster, Jr.,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant. Rebecca A. Betts, United States Attorney, Stephanie D.
Thacker, Assistant United States Attorney, Charleston, West Virginia,
for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Robert Lee Hill appeals the 24-month sentence imposed by the dis-
trict court upon revocation of his supervised release. Hill argues that
the court plainly erred in imposing a sentence in excess of the sen-
tencing range set out in the Chapter 7 policy statements of the federal
sentencing guidelines. See U.S. Sentencing Guidelines Manual
§§ 7B1.1, 7B1.4 (1995). In his view, after the 1994 amendments to
18 U.S.C.A. § 3553 (West 1985 & Supp. 1997), the Chapter 7 policy
statements are binding. We find that the court did not commit plain
error, and affirm the sentence.
Hill's sentencing range under the Chapter 7 policy statements was
7-13 months. At the revocation hearing, his attorney did not contest
the court's authority either to impose a sentence within the guideline
range or to impose the maximum sentence of two years authorized
pursuant to 18 U.S.C.A. § 3583(e) (West Supp. 1997). On appeal, Hill
claims that the court was required to impose a sentence within the
range set out in the Chapter 7 policy statements because the 1994
amendments to § 3553(a) made the Chapter 7 policy statements bind-
ing.
Because Hill made no objection to a sentence outside the recom-
mended range in the district court, we review for plain error. See Fed.
R. Crim. P. 52(b). A defendant is entitled to relief under Rule 52(b)
if an error occurred (1) which was plain, that is, one which is clear
under current law, (2) which prejudiced him in some way, and (3)
which "seriously affects the fairness, integrity, or public reputation of
judicial proceedings." United States v. Olano , 507 U.S. 725, 732-36
(1993).
In United States v. Davis, 53 F.3d 638, 640-42 (4th Cir. 1995), this
court held that the Chapter 7 policy statements"are now and always
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have been non-binding, advisory guides to the district courts in super-
vised release revocation proceedings." Davis , 53 F.3d at 642. The
issue before the court in Davis was whether the Chapter 7 policy
statements were binding before the 1994 amendments took effect.
However, in a footnote, this court expressed the view that the policy
statements were not binding even after the 1994 amendments to
§ 3553(a). See id. and 639 n.1 (for cases to which the 1994 amend-
ments apply, district courts are merely to "consider" the Chapter 7
policy statements).
Hill urges that we disregard the statement in Davis as dictum and
find that the Chapter 7 policy statements are binding. However, only
the Ninth Circuit has held that the 1994 amendments rendered the
Chapter 7 policy statements mandatory. See United States v. Plunkett,
94 F.3d 517, 519 (9th Cir. 1996). Other circuits have rejected the
arguments made by Hill. See United States v. Cohen, 99 F.3d 69, 71
(2d Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3753 (U.S.
May 12, 1997) (No. 96-7589); United States v. Hofierka, 83 F.3d 357,
360-61 (11th Cir.), modified on other grounds , 92 F.3d 1108 (11th
Cir. 1996), cert. denied, ___ U.S. ___, 65 U.S.L.W. 3466 (U.S. Jan.
6, 1997) (No. 96-6923); United States v. Escamilla, 70 F.3d 835 (5th
Cir. 1995), cert. denied, ___ U.S. ___, 64 U.S.L.W. 3657 (U.S. Apr.
1, 1996) (No. 95-8171); United States v. West , 59 F.3d 32, 34-37 (6th
Cir.), cert. denied, ___ U.S. #6D6D 6D#, 64 U.S.L.W. 3348 (U.S. Nov. 13,
1995) (No. 95-6370).
The weight of authority from other circuits convinces us that the
district court did not commit plain error in imposing a sentence in
excess of the sentencing range set out in the Chapter 7 policy state-
ments.
The sentence is therefore affirmed. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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