United States v. Harvey, Michael ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2086
United States of America,
Plaintiff-Appellee,
v.
Michael Harvey,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 97 C 30031--Richard Mills, Judge.
Argued September 28, 2000--Decided November
14, 2000
Before Flaum, Chief Judge, and Bauer and
Harlington Wood, Jr., Circuit Judges.
Bauer, Circuit Judge. After Michael
Harvey violated his supervised release,
the district court resentenced him to the
maximum prison term permitted by the
United States Sentencing Guidelines: a
consecutive 24 month sentence. Harvey
appeals this sentence as a "plainly
unreasonable exercise of judicial
discretion." We affirm the sentence.
I. Background
In 1998, Michael Harvey earned five
months in prison and three years of
supervised release for committing mail
fraud and making false statements. After
Harvey’s release from prison, he utterly
failed to abide by the conditions of his
supervised release. Harvey admitted the
following nine violations of his
supervised release:
(1) On March 26, 1999, Harvey was charged
with criminal trespass to his then-
girlfriend’s property. He pled guilty to
the offense and received a sentence of
six months supervision and a fine, which
was later converted to 10 days in jail.
(2) Harvey shoplifted items from a Sears
store on May 2, 1999. Upon his arrest,
Harvey had a blood alcohol level of .29
and admitted to drinking a quart of
whiskey and smoking crack cocaine. The
court convicted Harvey of retail theft
and sentenced him to six months court
supervision and a fine, which was later
converted to 10 days in jail.
(3) On August 7, Harvey committed felony
retail theft when he stole from a Dollar
General. He was sentenced to one year in
prison and one year of supervised
release.
(4) Harvey stole thirteen shirts from a
J.C. Penney’s store on June 29, 1999. The
court convicted Harvey of retail theft
over $300 and sentenced him to two years
in prison and one year of supervised
release.
(5) Harvey failed to submit supervised
release reports for the months of April,
June, July and August 1999.
(6) Harvey failed timely to report that he
was arrested and charged with a June 25,
1999 felony.
(7) Harvey failed to submit a urine
specimen pursuant to a June 14, 1999
random test ordered by his supervised
release officer.
(8) Harvey consumed alcohol on May 10,
1999.
(9) Police responding to an August 1, 1999
call about a suspicious person found
Harvey highly intoxicated.
Based on these violations, the state
petitioned to revoke Harvey’s supervised
release. The district judge accepted
Harvey’s admissions and granted the
state’s petition. Harvey’s attorney
recommended that the judge resentence
Harvey to 4 to 10 months in prison, as
suggested by U.S.S.G. sec. 7B1.4. The
state recommended the maximum sentence
allowed by 18 U.S.C. sec. 3583(e)(3)--24
months imprisonment. The government based
its recommendation on Harvey’s appalling
criminal record, which included 54 prior
convictions and 37 prior arrests. The
judge adopted the state’s recommendation
and imposed a 24 month sentence
consecutive to the time Harvey was
already serving. The defense did not
object. Harvey now argues that the 24
month consecutive sentence was a plainly
unreasonable exercise of judicial
discretion.
II. Discussion
As a preliminary matter, Harvey argues
that we have jurisdiction to review his
sentence because his counsel objected to
the sentence and because the sentence
constitutes plain error. We note that
Harvey failed to object to the sentence
at the lower court hearing. Harvey
halfheartedly argues that his
recommendation for a sentence between 4
and 10 months constitutes an objection.
We disagree. By neglecting to object,
Harvey failed to preserve the
appropriateness of his sentence for
review. We therefore review this sentence
solely for plain error. See United States
v. McGee, 60 F.3d 1266, 1268 (7th Cir.
1995).
Because there are no mandatory
guidelines for supervisory release
revocation we may reverse the district
court only if the sentence is plainly
unreasonable. See id. at 1272. To
determine whether the sentence was
plainly unreasonable, we must assess
whether the district judge complied with
the standards set out in 18 U.S.C. sec.
3583. See United States v. Doss, 79 F.3d
76, 79 (7th Cir. 1996). The district
court’s interpretation of the Sentencing
Guidelines is an issue of law; therefore
our review is de novo. United States v.
McClanahan, 136 F.3d 1146, 1149 (7th Cir.
1998).
Harvey first argues that the district
court failed to consider most of the
elements enumerated in 18 U.S.C. sec.
3583(e), the provision that governs
revocation of supervised release. 18
U.S.C. sec. 3583(e) directs the
sentencing judge to consider the nature
and circumstances of the offense; the
defendant’s history; the need of the
sentence to deter future crime, protect
the public, and provide the criminal with
necessary services like education and
medical treatment; Sentencing Commission
recommendations regarding sentence and
policy, and sentence consistency for like
violations. However, there is no
requirement that the court make findings
as to all the relevant factors. See
United States v. Hale, 107 F.3d 526, 530
(7th Cir. 1997).
Harvey argues that the only sec. 3583(e)
factor the court considered was his past
record. The trial record contradicts
Harvey. The sentencing judge addressed
the need to deter Harvey from committing
future crimes and to protect the public:
That doesn’t mean that in my mind’s eye
you won’t be before some other judge. If
the past is prologue, here it comes. And
if that happens, you’ll be in another
jumpsuit in somebody else’s court. . .
.You’ve got to make up your mind sometime
that you’re going to have to comply with
the rules of society or else we’re going
to keep doing the same thing and that’s
warehousing you and sending you back.
(Sent. Tr. 4). The court specifically
considered the sentence recommendation
communicated by the Sentencing
Commission:
The Court accepts Mr. Harvey’s admission
of having violated supervised release in
detail as set forth in the petition. And
that means the Court finds that we have
here a Grade B violation. The criminal
history category is I. And the policy
statement provisions call for four to ten
months by way of suggestion. The
statutory provision is a maximum of two
years on each of the counts.
(Sent. Tr. 14). Further, the sentencing
judge considered the seriousness of
Harvey’s supervised release violations:
I must tell you, Mr. Harvey, that it’s a
rara avis to see a petition to revoke
allege so many very serious violations.
Here we have four violations of the
criminal law . . . . And then we have a
failure to report . . . an arrest, and
then there’s the substance abuse
treatment and so forth. And you know that
alcohol is prohibited. . . .And not only
that, you failed to submit drops at the
Triangle. And we know what that is
indicative of. So it’s rare that I get
one like this. Usually it’s two, maybe
three violations or something. But here
we’ve had it in ace of spades and trumps.
(Sent. Tr. 12). In light of these
findings and the rule that the district
court need not make findings on all the
sec. 3583(e) factors, we find that the
district court complied with the
standards set by 18 U.S.C. sec. 3583, and
that its decision was not plainly
unreasonable.
Second, Harvey contends that the
district court improperly considered his
past record, thereby resentencing Harvey
too harshly. Specifically, he complains
that although his offenses were class B
violations, the district court, after
considering Harvey’s record, sentenced
him to the statutory maximum. Section 7B
of the Sentencing Guidelines addresses
resentencing for violations of supervised
release. This Circuit recognizes that
U.S.S.G. sec. 7B is a policy statement,
not a mandatory guideline, see
McClanahan, 136 F.3d at 1149, and as such
is not binding on the sentencing judge,
see Hale, 107 F.3d at 528; United States
v. Hill, 48 F.3d 228, 230-32 (7th Cir.
1995). Therefore, the district judge’s
decision not to follow them to the letter
was not plainly unreasonable.
Last, Harvey contends that the
consecutive nature of his new sentence is
plainly unreasonable. Harvey points out
that at the time he was resentenced, he
was serving sentences for the same state
law violations that were the basis for
the revoking of supervised release.
Section 7B1.3(f) of the Sentencing
Guidelines, however, recommends that
"[a]ny term of imprisonment imposed upon
the revocation of . . . supervised
release shall be ordered to be served
consecutively to any sentence of
imprisonment that the defendant is
serving, whether or not the sentence of
imprisonment being served resulted from
the conduct that is the basis of the
revocation of . . . supervised release."
U.S.S.G. sec. 7B1.3(f). The district
judge clearly followed the Sentencing
Guidelines’ policy recommendation when he
sentenced Harvey to a two year
consecutive sentence. Therefore, the
consecutive nature of Harvey’s sentence
is not plainly unreasonable.
III. Conclusion
We find that the 24 month sentence
imposed on Harvey did not constitute
plain error. Therefore, we AFFIRM.