United States v. Daniel Synowiecki ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2125
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Daniel Matthew Synowiecki, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 23, 2007
Filed: March 2, 2007
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Before RILEY, MAGILL, and MELLOY, Circuit Judges.
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PER CURIAM.
While Daniel Synowiecki was serving the supervised release portion of his
bank fraud sentence, he violated his supervised release and the district court1
sentenced him to 12 months in prison and 2 years of supervised release. During his
second period of supervised release, he again violated his supervised release:
ultimately he pleaded guilty to violating multiple release conditions, all Class C
violations. The district court revoked supervised release and sentenced him to 24
months in prison with no further period of supervised release. This appeal followed.
1
The Honorable Laurie Smith Camp, United States District Judge for the
District of Nebraska.
For reversal Synowiecki argues that the district court failed to consider the applicable
Guidelines Chapter 7 revocation range, and further, that the court abused its discretion
in imposing an excessive sentence and clearly erred in balancing the relevant
sentencing factors.
Synowiecki is correct that the district court was required to consider the Chapter
7 policy statements, see United States v. Hensley, 36 F.3d 39, 42 (8th Cir. 1994), and
although we believe that the court indicated its awareness of the need to do so, the
court failed to acknowledge the precise Chapter 7 revocation range applying to
Synowiecki’s Grade C violations and criminal history category. Further, the
probation violation worksheet in the record reflects a revocation range that is based
on a Grade B violation.
Nevertheless, regardless of whether any resulting error is reviewed for plain
error or harmless error, the revocation sentence must be affirmed. First, a district
court remains free to impose a revocation sentence outside the Guidelines range
suggested by the policy statements, if in its discretion the court believes that a higher
sentence is warranted. See United States v. Larison, 432 F.3d 921, 922-23 (8th Cir.
2006). Second, our review of the record convinces us that the district court was firm
on the 24-month sentence because of Synowiecki’s history of supervised release
violations and flouting of authority, as well as his need for rehabilitation and to be
incapacitated to protect society. Cf. Williams v. United States, 503 U.S. 193, 202-03
(1992) (when district court misapplies Guidelines, remand is required unless
reviewing court determines, on basis of whole record, that error is harmless, i.e., error
did not affect district court’s selection of sentence imposed); United States v. Sayre,
400 F.3d 599, 600-01 (8th Cir. 2005) (whether sentence was reviewed for plain error
or harmless error, affirmance was appropriate because ultimate inquiry was whether
district court’s error in following nonmandatory sentencing scheme affected
defendant’s ultimate sentence, and it was clear court wanted to impose sentence it felt
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appropriate on undisputed facts, making any remand futile), cert. denied, 126 S. Ct.
198 (2005).
Finally, we conclude that the revocation sentence was not unreasonable. See
18 U.S.C. § 3583(e) (court must consider certain factors in determining revocation
sentence, including those set forth in 18 U.S.C. § 3553(a)(1) (nature and
circumstances of offense and history and characteristics of defendant), and (a)(2)(C)
(need to protect public from further crimes of defendant)); United States v. Tyson, 413
F.3d 824, 825 (8th Cir. 2005) (per curiam) (revocation sentences are reviewed for
unreasonableness in accordance with United States v. Booker, 543 U.S. 220 (2005)).
The district court was clearly concerned about the defendant's multiple violations of
supervised release and the need to protect society. In addition, the district court
articulated as a reason for imposing the sentence she did the defendant's unwillingness
to cooperate with his probation officer or comply with the conditions of supervised
release. The district court's stated reasons for imposing a twenty-four month sentence
are more than adequate to demonstrate the reasonableness of the sentence.
Accordingly, we affirm.
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