United States v. Washington ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-4322
PAUL DONALD WASHINGTON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
Rebecca B. Smith, District Judge.
(CR-92-61-NN)
Submitted: October 10, 1997
Decided: December 17, 1997
Before HALL, NIEMEYER, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
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COUNSEL
James K. Bredar, Federal Public Defender, Beth M. Farber, Chief
Assistant Federal Public Defender, Baltimore, Maryland, for Appel-
lant. Helen F. Fahey, United States Attorney, Damon A. King, Special
Assistant United States Attorney, Fort Eustis, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Paul Donald Washington appeals the twenty-four-month sentence
imposed upon revocation of his supervised release. He contends that
the district court violated 18 U.S.C.A. § 3553(a)(4)(B) (West 1985 &
Supp. 1997), by imposing a sentence without considering the Chapter
7 policy statements, see U.S. Sentencing Guidelines Manual § 7B1.4
(1992). We affirm.
Washington began serving a three-year term of supervised release
in May 1995. After a hearing, the district court found that Washington
had violated the conditions of his supervised release by inter alia
being convicted of driving on a suspended license and speeding, fail-
ing to report these convictions to his probation officer, failing to sub-
mit timely and truthful monthly reports, failing to report to the
probation officer as directed, and failing to pay restitution. Washing-
ton offered explanations for each of his violations. The district court
revoked Washington's supervised release and imposed a prison sen-
tence of twenty-four months, the maximum penalty provided by 18
U.S.C.A. § 3583(e)(3) (West Supp. 1997).
Washington's attorney noted no objection to the sentence. Conse-
quently, we review only for plain error. See United States v. Olano,
507 U.S. 725 (1993). We should grant relief only if the error is plain,
affects substantial rights, and seriously affects the fairness, integrity,
or public reputation of judicial proceedings. Id. at 732-37.
In sentencing a defendant after revoking a term of supervised
release, the district court must consider certain factors set out in 18
U.S.C.A. § 3553(a), one of which is the applicable Chapter 7 policy
statements governing the revocation of supervised release terms. See
18 U.S.C.A. §§ 3553(a)(4)(B), 3583(e). The Chapter 7 policy state-
ments, however, are not binding. See United States v. Davis, 53 F.3d
638, 642 (4th Cir. 1995). Having considered the relevant factors and
the applicable policy statements, the court has the discretion to
impose a sentence outside the ranges set out in the sentencing guide-
lines. Id. at 642-43.
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We will assume -- and it is a generous assumption-- that the first
three Olano criteria were met. It is surely error to fail to consider the
policy statements, and that error would be "plain" in a legal sense, but
it is by no means "plain" that the error even occurred here. The proba-
tion officer cited to the applicable policy statement in a worksheet
that, if it were distributed at the revocation hearing, would evince suf-
ficent consideration. Id. at 642 & n.16 ("Given that [the relevant pol-
icy statement] was cited repeatedly in the probation officer's
worksheet ..., the ... policy statement was obviously within the district
court's contemplation .... Consideration is implicit in the court's ulti-
mate ruling."). With commendable candor, counsel for appellant
reports that the probation officer stated off the record that the report
was in fact distributed at the hearing. We are stuck with the actual
record, however, which is silent on the matter. We will assume the
worst. Likewise, we will assume that a defendant has a "substantial
right" to consideration of the policy statements, though that proposi-
tion is surely a tenuous one.
We can indulge all of these assumptions because, even if they
proved true, we would not exercise our discretion to correct the error
under the final prong of the Olano test. Reversal for plain error is
appropriate only where the error "seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings." 507 U.S. at
736. A court's failure to consider non-binding information falls far
short of this high hurdle.
Accordingly, we affirm the sentence. We dispense with oral argu-
ment because the facts and legal contention are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED
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