United States v. Tamara Lynn Goodall , 139 F. App'x 219 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-15205
July 01, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D.C. Docket No. 02-00579-CR-JEC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TAMARA LYNN GOODALL,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(July 1, 2005)
Before ANDERSON, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Tamara Lynn Goodall, who pled guilty to an information charging her with
bank fraud, in violation of 18 U.S.C. § 1344 (Count I), and mail fraud, in violation
of 18 U.S.C. § 1341 (Count II), appeals her 24-month sentence of incarceration
that was imposed following a revocation of her supervised release. On appeal,
Goodall argues that, at a minimum, the district court was required “to consider”
and “to follow” the recommended sentencing guidelines outlined in U.S.S.G.
§ 7B1.4, which indicate a sentence of 8 to 14 months for a Grade B violation.
Goodall also argues that her particular violations of supervised release did not
support what she calls the court’s upward departure. Goodall acknowledges that
“Chapter 7 sentencing guidelines are [not] binding on the district courts,” and that
they “can vary from the requisite guidelines so long as the guidelines are
genuinely considered.” Goodall argues, however, that the district court “failed to
genuinely consider the Chapter 7 guidelines.” Goodall also argues that, although
previously a district court’s decision to exceed the sentencing guidelines under
§ 7B1.4 was reviewed for an abuse of discretion, the Prosecutorial Remedies and
Other Tools to End the Exploitation of Children Today Act (the “PROTECT
Act”), Pub. L. No. 108-21, 117 Sta. 650 (2003), changed the standard of review to
de novo. Finally, Goodall argues that the district court erred by sentencing her to
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supervised release when both she and the government had recommended
otherwise.1
“We review a district court’s decision to exceed the chapter seven
guidelines’ recommended sentencing range for an abuse of discretion.” United
States v. Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). We have held that the
Chapter Seven policy statements, which provide ranges of imprisonment that a
court may follow when revoking supervised release based upon certain “grades” of
violations, are merely advisory, not binding. United States v. Hofierka, 83 F.3d
357, 360 (11th Cir. 1996). We have indicated that a district court’s decision to
exceed the Chapter Seven sentencing range does not constitute a “departure.” Id.
at 362. Because the policy statements are not binding and the decision not to
follow them is not a departure, the PROTECT Act does not cover this sentencing.
See, e.g., United States v. Martin, 371 F.3d 446, 449 (8th Cir. 2004).
The grades of offenses are outlined in U.S.S.G. § 7B1.1, and the suggested
sentences are contained in U.S.S.G. § 7B1.4. We have held that “it is enough that
1
Goodall only makes a passing reference to this claim, and, consequently, she has waived
it. See Farrow v. West, 320 F.3d 1235, 1242 n. 10 (11th Cir. 2003) (stating that where appellant
made only a passing reference to the district court's dismissal of a particular claim and made no
arguments on the merits as to that issue, the issue was deemed waived).
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there is some indication the district court was aware of [the guidelines] and
considered them.” Aguillard, 217 F.3d at 1320.
“A court may revoke a defendant's term of supervised release and impose a
prison sentence when it finds by a preponderance of the evidence that the
defendant violated a condition of his or her supervised release.” Hofierka, 83 F.3d
at 363 (citing 18 U.S.C. § 3583(e)(3)). “Upon revocation of a term of supervised
release, the court may require a defendant to serve in prison all or part of the term
of supervised release authorized by statute without credit for time served on
post-release supervision.” Id. at 362 (citing 18 U.S.C. § 3583(e)(3)). “The court
may not, however, impose a sentence upon revocation of greater than . . . three
years where it was a class B felony.” Id. An offense is classified as a Class B
felony if the maximum term of imprisonment authorized is 25 years or more. 18
U.S.C. § 3559(a)(2).
The record makes clear that the district court was aware of and considered
the Chapter Seven ranges. The parties mentioned the ranges several times during
their arguments at the sentencing hearing, and it is apparent from the district
court’s statements about needing to craft a longer sentence to help Goodall that it
considered and found ineffective the recommended ranges. Because the guideline
ranges set forth in Chapter Seven of the Sentencing Guidelines are advisory and
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the record indicates that the district court considered the recommended range, it
did not abuse its discretion by sentencing Goodall to a term of imprisonment in
excess of the suggested range. Accordingly, we affirm her sentence.
AFFIRMED.
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