United States v. Huusko, David G. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-3101
United States of America,
Plaintiff-Appellee,
v.
David G. Huusko,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 98 CR 83--John C. Shabaz, Judge.
Argued December 7, 2001--Decided December 21, 2001
Before Flaum, Chief Judge, and Manion and
Diane P. Wood, Circuit Judges.
Flaum, Chief Judge. David Huusko appeals
the district court’s imposition of a two-
year sentence following revocation of his
supervised release. Because we do not
find this sentence plainly unreasonable,
we affirm.
I. Background
In 1994, David Huusko pleaded guilty to
two counts of bank robbery and was
sentenced to seventy-eight months’
imprisonment followed by a three-year
term of supervised release. General
Condition I of his supervised release
provided that Huusko would not commit any
other federal, state, or local crime. On
January 4, 2001, after having served 2
years of his probation, Huusko was found
guilty of armed robbery, being party to a
crime, and habitual criminality, and was
sentenced by the Eau Claire County
Circuit Court to 15 years’ imprisonment.
Huusko is presently appealing that
conviction.
Upon the recommendation of the probation
officer, the district court in the
Western District of Wisconsin held a
revocation hearing at which it considered
Huusko’s sentence in light of his
noncompliance with General Condition I.
At the hearing, Huusko stipulated that he
had been convicted in a state court; he
did not stipulate that he was guilty of
the underlying crimes, however. The court
revoked Huusko’s supervised release and
imposed a 24-month term of imprisonment--
the statutory maximum under 18 U.S.C.
sec.3583(e)(3)--to be served
consecutively to his state sentence. The
United States Sentencing Guidelines’
recommended imprisonment range for a
Grade A violation (which this was)
coupled with a level II criminal history
(which Huusko had) is 15-21 months. The
court chose to impose the maximum
sentence allowable "because of the
violent nature of the violation. The
sentence to be imposed by the Court will
protect the community and promote
personal and general deterrence."
II. Discussion
Huusko appeals not the revocation of his
supervised release, which he concedes the
court was required to do, but the
sentence imposed. No mandatory sentencing
guidelines exist for supervised release
violations; therefore, we may reverse the
sentence only if it is plainly
unreasonable. United States v. Harvey,
232 F.3d 585, 587 (7th Cir. 2000) (citing
United States v. McGee, 60 F.3d 1266,
1272 (7th Cir. 1995)).
Huusko argues that the 24-month sentence
imposed consecutively to his state
sentence is plainly unreasonable because:
(1) the court failed to consider the
weakness of the state court charges and
the possible success on appeal when
determining the length of the sentence;
(2) the court failed to give appropriate
weight to the recommended sentencing
guideline range when determining the
length of the sentence; and (3) the court
should have imposed a concurrent sentence
because the conduct forming the basis for
the revocation was the very conduct
underlying the state-imposed sentence. We
address each argument in turn.
First Huusko contends that the district
court failed to give any weight to the
prospect that he had been wrongly
convicted and would win his appeal. If
that should happen, he argues, he would
be improperly held in federal custody
while he attempted to obtain counsel and
file a habeas corpus petition. This
argument is unavailing. The district
court was entitled to rely on Huusko’s
conviction as adequate proof of the
violation of state law. United States v.
Fleming, 9 F.3d 1253, 1254 (7th Cir.
1993). The pendency of an appeal in an
underlying state conviction does not
affect the court’s decision as to the
length of sentence following supervised
release revocation.
Next Huusko argues that the district
court did not give appropriate weight to
the recommended guideline range. He
correctly notes that, while the U.S.S.G.
policy statement setting forth the range
is merely advisory, sentencing courts are
statutorily required to consider it.
Under 18 U.S.C. sec.3583(e)(3), the
sentencing court must consider: (1) the
nature and circumstances of the offense;
(2) the defendant’s history and
characteristics; (3) the need of the sen
tence to deter future crime, protect the
public, and provide the criminal with
necessary services; (4) Sentencing
Commission recommendations regarding
sentence range; (5) Sentencing Commission
policy; and (6) sentence consistency for
like violations. Harvey, 232 F.3d at 588
(citing United States v. Hale, 107 F.3d
526, 530 (7th Cir. 1997)). In this case,
the court noted the guideline range but
chose to apply the maximum sentence after
considering the factors as a whole,
including: the violent nature of the
crime, Huusko’s criminal record, and
protection of the community. Sentencing
courts need not make findings as to each
factor; it is sufficient "if the
sentencing court made comments reflecting
that the appropriate factors were
considered." Hale, 107 F.3d at 530. Here,
the court carefully considered and
commented upon the sec.3583(e)(3) factors
in coming to its decision. The sentencing
guideline range is merely a
recommendation; a judge’s decision "not
to follow [it] to the letter [is] not
plainly unreasonable." Harvey, 232 F.3d
at 588.
Lastly Huusko contends that the sentence
imposed by the district court is plainly
unreasonable because it is consecutive to
the sentence he is serving on the state
charges. He argues that where the conduct
forming the basis for the revocation is
the same as that underlying the current
sentence, a concurrent sentence is the
only reasonable option. This Circuit’s
precedent and the policy promulgated by
the Sentencing Commission state
otherwise. While this Court has held that
when the conduct underlying the
revocation and the current sentence is
the same, a concurrent sentence would be
reasonable, United States v. Hill, 48
F.3d 228 (7th Cir. 1995), we have never
held that imposing a consecutive sentence
in that same case would be plainly
unreasonable. In fact, we have held
squarely the opposite. Harvey, 232 F.3d
at 588-89. Moreover, section 7B1.3(f) of
the Sentencing Guidelines 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. Sentencing Guidelines Manual
sec.7B1.3(f) (2001) (emphasis added). The
violation of a condition of supervised
release is a breach of trust--and while
the sentencing court at revocation takes
into account the seriousness of the
underlying crime, it is primarily this
breach of trust that is sanctioned. U.S.
Sentencing Guidelines Manual ch. 7, pt.
A, introductory cmt. Therefore, it is not
unreasonable for this sanction to be con
secutive to any sentence imposed for the
underlying conduct.
III. Conclusion
For the reasons stated herein, we AFFIRM
the decision of the district court.