United States v. Don Harris , 382 F. App'x 145 ( 2010 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-4099
___________
UNITED STATES OF AMERICA
v.
DON HARRIS,
Appellant
___________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1-00-cr-00063-004)
District Judge: The Honorable Sylvia H. Rambo
___________
Submitted Under Third Circuit LAR 34.1(a)
May 21, 2010
BEFORE: FUENTES, HARDIMAN, and NYGAARD, Circuit Judges.
(Filed: June 1, 2010)
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Appellant Don Harris asks us to remand for re-sentencing because the District
Court failed to provide advance notice of its intention to depart upwards from the
sentencing guideline range applicable to a revocation of supervised release. We will
affirm the District Court.
We review de novo a district court’s interpretation of a guideline. United States v.
Butch, 256 F.3d 171, 177 (3d Cir. 2001). A district court’s decision to exceed the
sentencing range prescribed by § 7B1.4 is reviewed for an abuse of discretion. United
States v. Schwegel, 126 F.3d 551, 555 (3d Cir. 1997). Revocation of Supervised Release
proceedings are subject to F ED.R.C RIM.P. 32.1(b)(2) which does not expressly or
implicitly require advance notice of the sentencing court’s intention to depart upward.
Harris relies on F ED. R.C RIM. P. 32(h) which states: “Before the court may depart from
the applicable sentencing range on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such departure.” Rule 32.1(b)(2), in contrast to
Rule 32(h), does not require this advance notice because the sentencing guideline
provisions for violations of supervised release, under U.S.S.G. § 7B1.4(a), are merely
policy statements which we have never considered mandatory. See Schwegel, 126 F.3d at
552. Rule 32(h) remains in full force notwithstanding that, under United States v.
Booker, 543 U.S. 220 (2005), all sentencing guidelines must be considered advisory,
rather than mandatory. Thus, although notice would be required if this case involved a
2
departure from a guideline range for purposes of initial sentencing, this is not such a
departure. See Burns v. United States, 501 U.S. 129, 138 (1991). Therefore, we conclude
that the District Court was not required to notify Harris of its intent to impose a sentence
that exceeded the range recommended under U.S.S.G. § 7B1.4(a).1
We will affirm the sentence.
1
We note that even were we to conclude that the District Court owed Harris
advance notice of its intention to upwardly depart, the record indicates that Harris’
counsel was indeed given advance notice that an upward departure was a possibility.
Officer Julie M. Persinger of the United States Probation Office — in two separate
dispositional reports — indicated that “because the defendant’s original sentence was
reduced as a result of substantial assistance, an upward departure may be warranted.”
Both of these disposition reports were copied to defense counsel.
3