United States v. Shannon Shaw ( 1999 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 98-1454
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Shannon Shaw, *
* [PUBLISHED]
Appellant. *
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Submitted: June 5, 1999
Filed: June 29, 1999
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Before FAGG, HANSEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
In 1994, Shannon Shaw pleaded guilty to conspiracy to possess with intent to
distribute more than one gram of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and 846,
and the district court1 sentenced him to thirty months' imprisonment and five years'
supervised release. He served his prison sentence and was placed on supervised
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The Honorable William G. Cambridge, Chief Judge, United States District
Court for the District of Nebraska.
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release in 1996. In January 1998, the district court held a revocation hearing at which
Shaw admitted to, and the district court found by a preponderance of the evidence,
multiple violations of his supervised release, including that Shaw had pleaded guilty to
and received a probationary sentence for an operating-during-suspension charge, that
Shaw had tested positive for drug use and had failed to appear for a urinalysis on three
occasions, and that Shaw had failed to appear for mental health counseling on three
occasions. Initially, the district court indicated it would continue the hearing to offer
Shaw an opportunity to participate in further outpatient counseling before sentencing
him on the revocation violations. When the probation officer expressed her concerns
about Shaw's recent intravenous drug use and suicidal ideations, however, the district
court--after allowing defense counsel to address this information--revoked the
supervised release and sentenced Shaw to twenty-four months' imprisonment and three
years of follow-on supervised release. Shaw appeals, challenging the district court's
revocation sentence as being above the recommended revocation sentencing range set
forth in Chapter 7 of the United States Sentencing Guidelines Manual. In support,
Shaw offers the nature of his release violations, the court's initial willingness to allow
Shaw to continue with his counseling rather than immediately revoking supervised
release and imposing imprisonment, the lack of advance warning of the need to address
the issues of his intravenous drug use and suicidal ideations, and the district court's
failure to allow defense counsel to be heard prior to imposition of sentence.
Shaw misconstrues the nature of Chapter 7 of the United States Sentencing
Guidelines Manual, which applies to supervised release violations. The Sentencing
Commission has chosen to promulgate purely advisory policy statements and to
forestall implementing formal, binding guidelines covering revocation of supervised
release situations until judges, probation officers, and practitioners have had a chance
to use and evaluate the Chapter 7 policy statements. See USSG Ch. 7, Pt. A, §§ 1, 3(a)
(1997). The Guidelines Manual sets out a Revocation Table based on the grade of the
defendant's supervised release violation and the criminal history category of his original
conviction. See USSG § 7B1.4, p.s. We have previously held that the sentencing
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ranges contained in Chapter 7 are merely advisory and thus are not binding on a
sentencing court. See United States v. Kaniss, 150 F.3d 967, 968 (8th Cir. 1998);
United States v. Hensley, 36 F.3d 39, 41-42 (8th Cir. 1994).
The policy statements in Chapter 7 suggested a revocation sentence of three to
nine months in prison based on the seriousness of Shaw's release violations and his
criminal history category. See USSG §7B1.4, p.s. (Grade C violation and Criminal
History Category I). While recognizing the recommended range, the court sentenced
Shaw to twenty-four months in prison based on findings that continued in-the-field
supervision would not be successful, that Shaw failed to make a good faith attempt to
comply with the terms and conditions of his release, that Shaw was unable to avoid
antisocial or criminal activity, and on Shaw's need for long-term intensive drug
treatment. (See Judgement at 8-9.) The district court stated that it had considered the
factors set out in 18 U.S.C. sections 3553 and 3583 in rendering its revocation
sentence.
Because Chapter 7's policy statements are not binding, a revocation sentence
exceeding the suggested range is just that, a sentence. It is not an "upward departure"
because there is no binding guideline from which to depart. Although at an original
sentencing proceeding a court must provide reasonable notice of the grounds upon
which it intends to rely as the basis for an upward departure from an otherwise
correctly determined sentencing range if the grounds are different than those stated in
the presentence report or the government's submissions, see United States v. McCarthy,
97 F.3d 1562, 1580 (8th Cir. 1996), cert. denied, 519 U.S. 1139, and 520 U.S. 1133
(1997), that notice requirement does not apply here because there was no "departure"
in the Guidelines' sense of that term. See United States v. McClanahan, 136 F.3d 1146,
1152 (7th Cir. 1998); United States v. Pelensky, 129 F.3d 63, 70-71 (2d Cir. 1997);
United States v. Burdex, 100 F.3d 882, 885 (10th Cir. 1996), cert. denied, 520 U.S.
1133 (1997); United States v. Hofierka, 83 F.3d 357, 362 (11th Cir.), modified on other
grounds, 92 F.3d 1108 (11th Cir.1996), cert. denied, 519 U.S. 1071 (1997); United
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States v. Mathena, 23 F.3d 87, 94 n.13 (5th Cir. 1994). Shaw does not dispute that the
district court's revocation sentence is within the statutory maximum allowed for
revocations. See 18 U.S.C. §3583(e)(3). Thus, Shaw's argument regarding lack of
notice lacks merit.
We also find no merit in Shaw's contention that defense counsel was denied an
opportunity to comment or be heard further, as it is belied by the record. The district
court gave defense counsel an opportunity to address Shaw's intravenous drug use and
mental state before it sentenced Shaw to further imprisonment. (See Sentencing Tr. at
69-71.) Cf. United States v. Harper, 946 F.2d 1373, 1374-75 (8th Cir. 1991)
(remanding for resentencing where district court refused to allow defense counsel
opportunity to speak on client's behalf prior to imposition of sentence), cert. denied,
503 U.S. 948 (1992).
Finally, we conclude that the district court did not abuse its discretion in
imposing the twenty-four-month prison term in light of the nature of Shaw's supervised
release violations, including his repeated failure to submit urine specimens, and the
court's expressed desire to ensure that Shaw would receive "long-term intensive
treatment for drug and alcohol abuse, and for psychiatric, psychological, mental or
emotional treatment in a highly structured environment." (Sentencing Tr. at 76.) See
18 U.S.C. § 3583(g)(3) (revocation of supervised release and imprisonment are
mandatory if the defendant refuses to comply with a drug testing program imposed as
a condition of supervised release); § 3553(a) (factors court must consider include need
to punish behavior, provide future deterrence, and provide defendant with needed
correctional treatment). See also Kaniss, 150 F.3d at 968 (district court's sentence
above recommended range was not abuse of discretion where district court considered
statutory factors); United States v. Thornell, 128 F.3d 687, 688 (8th Cir. 1997)
(reasonable for district court to base higher sentence on defendant's need for drug
rehabilitation); Hensley, 36 F.3d at 41 (no abuse of discretion for similar sentence with
similar release violations).
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Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT
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