UNITED STATES of America, Appellee, v. Floyd BRUCE, Appellant, 350 U.S. App. D.C. 417

Opinion for the Court filed PER CURIAM. PER CURIAM': The appellant, Floyd Brace, seeks reversal of the district court’s July 30, 2001 sentencing decision, see App. of Appellant at 143-98, in which the court concluded that the policy statements contained in

Chapter 7 of the United States Sentencing Guidelines (U.S.S.G.) are not binding upon sentencing courts. Bruce contends, simply, that the court erred in so holding and that we should remand for resentencing. We disagree. I. In December 1994 a grand jury issued a two-count indictment against Bruce, charging him with bank fraud, in violation of 18 U.S.C. § 1344 (Count One), and with uttering and possessing forged securities of an organization, in violation of 18 U.S.C. § 513(a) (Count Two). In February 1995 the petit jury found Bruce guilty on both counts.

The district court sentenced him to a term of 24 months’ imprisonment, which was to be followed by three years of supervised release. Bruce appealed his conviction and we affirmed. See United States v. Brace, 89 F.3d 886 (D.C.Cir. 1996). Bruce served his time and was released on August 28,1996; accordingly, he was to remain on supervised release until August 27, 1999.

On October 7, 1997 the Probation Office notified the district court that Bruce had violated his release conditions because he had been arrested twice in New York for motor vehicle violations, had twice tested positive for marijuana and had failed to make restitution payments. The district court found that Bruce had indeed violated his release conditions; it therefore extended his supervised release period by one year — -to end on August 27, 2000 — and ordered him to serve a 90-day period of monitored home confinement, to participate in a drug aftercare program and to make monthly restitution payments.

On January 22, 1998 and March 26, 1998 the Probation Office forwarded reports to the district court advising it that Bruce had once again violated his release conditions by (1) being arrested for and charged with larceny in New York in October 1997; (2) failing to notify his probation officer of the arrest; (3) failing to make restitution payments as ordered; (4) failing to attend drug counseling as ordered; (5) failing to adjust his telephone service to accommodate electronic monitoring as ordered; (6) being arrested yet again in New York for forgery, possession of a forged instrument and possession of stolen property; (7) failing to notify his probation officer of the arrest; and (8) making false statements to his probation officer that he is a United States citizen.

After Bruce failed to appear at a June 2, 1998 hearing, the district court issued a warrant for his arrest. Bruce remained a fugitive until he was arrested on October 26, 2000 in Blue Ash, Ohio, where he was indicted in state court on several counts of theft, possessing criminal tools and receiving stolen property. He was returned to the District of Columbia and brought into custody on January 10, 2001 pursuant to the district court’s warrant.

At a July 2001 status hearing Bruce told the district court that he did not wish to contest the eight supervised release violations alleged by the government and that he preferred to proceed to resentencing. At his July 30 resentencing hearing, Brace waived his right to contest the violations.

The parties did not dispute (1) that by statute, the maximum sentence of imprisonment the court could impose for the violations was 36 months, see 18 U.S.C. § 3583(e)(3) (a “defendant whose [supervised release] term is revoked under this paragraph may not be required to serve ... more than 3 years in prison if [his] offense [of conviction] is a class B felony”); or (2) that the sentence provided in

Chapter 7 for a defendant (like Brace) with a criminal history of category II was six to 12 months, see U.S.SiG. § 7B1.4. The parties did argue, however, about whether

Chapter 7 is binding upon the district court. Brace contended that a 1994 amendment to 18 U.S.C. § 3553 had rendered

Chapter 7’s policy statements mandatory; thus, he claimed that the court was obligated to sentence him within the six- to 12-month range. The government argued that the amendment effected no such change in the law and that the court was free to impose a sentence of up to 36 months under

section 3583(e)(3). The district court concluded that

Chapter 7’s policy statements are not binding. The court based its decision, first, upon our pre-1994 holding in United States v. Hooker, 993 F.2d 898 (D.C.CSr.1993), that the policy statements are not mandatory and, second, upon several post-1994 circuit court decisions concluding that the policy statements — even after the amendment to 18 U.S.C. § 3553 — remain non-binding.

The court, therefore, held that it could impose a sentence of up to 36 months’ incarceration for Bruce’s uncontested supervised release violations but sentenced him instead to 24 months, finding that it would be “to a certain extent illogical” to sentence him to “a period of time that exceeds what he was sentenced to originally.” App. of Appellant at 196. Brace timely filed a notice of appeal. II. Bruce claims that the district court erred in sentencing him to a prison term of 24 months by declining to follow U.S.S.G. § 7B1.4’s revocation table. He argues that the supervised release policy statements contained in

Chapter 7 —

section 7B1.4 included — are binding on the district court and that he should have received only six to 12 months. As noted above, we held in Hooker that “the

Chapter VII policy statements themselves are merely advisory.” Hooker, 993 F.2d at 900. Accordingly, the sole legal issue before us is whether, as Brace contends, the Congress’s post-Hooker amendment to 18 U.S.C. § 3553(

a) rendered the policy statements mandatory. Addressing that issue de novo, see United States v. Yeh, 278 F.3d 9, 13 (D.C.Cir.2002), we hold that it did not. In 1990 the United States Sentencing Commission (Commission) promulgated

Chapter 7’s policy statements pursuant to its authority to prescribe “guidelines or general policy statements regarding the appropriate use of the provisions for ... modification of the term or conditions of supervised release and revocation of supervised release set forth in

section 3583(

e) of title 18.” 28 U.S.C. § 994(a)(3). The Commission made clear that “[a]fter considered debate” it had decided to promulgate only policy statements — not guidelines — with respect to supervised release revocation. • U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. (2001). It believed that “this approach [would] provide[] greater flexibility to both the Commission and the courts” and that “the additional time to consider complex issues relating to revocation guidelines ... [would] provide better opportunities for evaluation.” Id.

The Commission also advised that it “intend[ed] to promulgate revocation guidelines” after “an adequate period of evaluation.” Id. It has yet to do so. At the time Hooker was decided, 18 U.S.C. § 3553 (“Imposition of a sentence”) provided, in pertinent part: (

a) Factors to be considered in imposing a sentence. — The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection [including such purposes as deterrence, incapacitation and rehabilitation], The court, in determining the particular sentence to be imposed, shall consider ... (4) the kinds of sentence and the sentencing range established for the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines that are issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)(1) and that are in effect on the date the defendant is sentenced; (5) any pertinent policy statement issued by. the Sentencing Commission pursuant to 28 U.S.C. 994(a)(2) that is in effect on the date the defendant is sentenced; ... (

b) Application of guidelines in imposing a sentence. — The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4) unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.

In determining whether a circumstance was adequately taken into consideration, the. court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.

In the absence of an applicable sentencing guideline, the court shall impose an appropriate sentence, having due regard for the purposes set forth in subsection (a)(2): In the absence of an applicable sentencing guideline in the case of an offense other than a petty offense, the court shall also have due regard for the relationship of the sentence imposed to sentences prescribed by guidelines applicable to similar offenses and offenders, and to the applicable policy statements of the Sentencing Commission. 18 U.S.C. § 3553 (1988) (emphases added). In 1994, after Hooker, the Congress amended

section 3553 by dividing subsection (a)(4) into two parts as follows: (

a) Factors to be considered in imposing a sentence. The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes ■ set forth in paragraph (2) of this subsection [including such purposes as deterrence, incapacitation and rehabilitation]. The court, in determining the particular sentence to be imposed, shall consider (4) the kinds of sentence and the sentencing range established for— (

A) the applicable category of offense committed by the applicable category 'of defendant as set forth in the guidelines issued by the Sentencing Commission pursuant to

section 994(a)(1) of title 28, United States Code, and that are in effect on the date the defendant is sentenced; or (

B) in the case of a violation of probation or supervised release, the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to

section 994(a)(3) of title 28, United States Code; ... 18 U.S.C. § 3553(a) (emphases added). Subsection (b) (“Application of guidelines in imposing a sentence”) remained unchanged after the 1994 amendment. Bruce’s syllogistic argument proceeds as follows: first,

section 3553(

b) requires the district court to “impose a sentence of the kind and within the range referred to in subsection (a)(4)”; second, after Hooker, subsection (a)(4) was amended to include reference to “applicable guidelines or policy statements issued by the Sentencing Commission” for supervised release violations; therefore, in amending (a)(4), the Congress was announcing that a district court must impose a sentence for a supervised release violation within the range provided by the Commission, whether that range is set forth in a guideline or a policy statement.

As Bruce candidly acknowledges, all of the circuits that have considered the issue before us have “unanimously rejected his position,” Br. of Appellant at 18, holding that the 1994 amendment did not render

Chapter 7’s policy statements binding on sentencing courts. See United States v. Brown, 203 F.3d 557, 558 (8th Cir.2000) (per curiam); United States v. George, 184 F.3d 1119, 1120-22 (9th Cir.1999); United States v. Schwegel, 126 F.3d 551, 552-55 (3d Cir.1997) (per curiam); United States v. Cohen, 99 F.3d 69, 70-71 (2d Cir.1996) (per curiam), cert. denied, 520 U.S. 1213, 117 S.Ct. 1699, 137 L.Ed.2d 825 (1997); United States v. Hofierka, 83 F.3d 357, 360-61 (11th Cir.1996) (per curiam), cert. denied, 519 U.S. 1071, 117 S.Ct. 717, 136 L.Ed.2d 636 (1997); United States v.

Escamilla, 70 F.3d 835, 835 (5th Cir.1995) (per curiam), cert. denied, 517 U.S. 1127, 116 S.Ct. 1368, 134 L.Ed.2d 533 (1996); United States v. West, 59 F.3d 32, 33-36 (6th Cir.), cert. denied, 516 U.S. 980, 116 S.Ct. 486, 133 L.Ed.2d 413 (1995). Because Bruce’s logic finds no support in the statutory text, we decline to break rank with our sister circuits. The plain language of

section 3553(

a) merely states that a district court must “consider ... the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to

section 994(a)(3)” when imposing a sentence for a violation of supervised release. 18 U.S.C. § 3553(a)(4)(B) (emphasis added). To “consider” means to “reflect on,” “think about,” “deliberate,” “ponder” or “study.” Webster’s Third New International Dictionary, Unabridged 483 (1993). It does not mean to “adhere to,” “be bound by” or “follow.” Turning to

section 3553(b), one sees that it unambiguously requires' a sentencing court to “impose a sentence of the kind, and within the range, referred to in subsection (a)(4).” 18 U.S.C. § 3553(b). Bruce contends that because subsection (a)(4) — specifically (a)(4)(B) — now references policy statements, sentencing courts must adhere to those statements by virtue of

section 3553(b)’s mandate. His

interpretation is not entirely implausible; while our sister circuits all appear to agree that the purpose of the 1994 amendment was “to clarify that resentencing for probation and supervised release violations should be based upon sentencing guidelines and policy statements issued by the- Commission specifically for that purpose, rather than upon the guidelines applicable to ... the original offense,” George, 184 F.3d at 1121-22 (quoting Schwegel, 126 F.3d at 554) (internal quotations omitted), the Congress could have made its aim somewhat clearer textually. Indeed, as Bruce suggested at oral argument, it could have amended

section 3553(

b) to require imposition of “a sentence of the kind, and within the range, referred to in subsection (a)(4)(A) [as opposed to (a)(4) ],” thus requiring — explicitly—application of the guidelines but only consideration of the policy statements. The “Congx-ess-couldhave” ax'gument, however, woi-ks as much to Brace’s detriment as it does to his advantage. As its heading suggests,

section 3558(

b) pei'tains to “[application of [the] guidelines” and only asks a court to “consider” or have “due regax-d for” the “applicable policy statements” in “the absence of an applicable sentencing guideline.” 18 U.S.C. § 3553(b) (emphasis added). Thus, as the Second Cix-cuit has put it, “[a]bsent any applicable guidelines in

Chapter 7, § 3553(b)’s mandatoxy language does not apply.” Cohen, 99 F.3d at 71 (citing West, 59 F.3d at 35). Without much difficulty, the Congx-ess could have amended 3553(

b) to require adherence to policy statements. It did not; accoi'dingly, we are left with a statute that plainly x-equix-es a district coux-t to apply guidelines (where they exist) but mex-ely consider (i.e., “x’eflect on,” “think about,” “delibex-ate,” “ponder-” or “study”) policy statements. Bx-uce x-esists this conclusion, claiming that “it is not at all clear whether Congress intended the tex-m ‘guidelines’ [in

section 3553(b) ] to exclude policy statements.” Br. of Appellant at 19. For sevei-al x-easons, we disagx-ee. Fix-st, in mutually exclusive tex-ms,

section 994(a)(3) of title 28 requix-es the Commission to px-omulgate “guidelines or genex-al policy statements regax-ding the appropriate use of the provisions for ... modification of the tenn or conditions of supervised x-e-lease and x-evocation of supervised release set forth in

section 3583(

e) of title 18.” 28 U.S.C. § 994(a)(3) (emphasis added). Second, pursuant to that x-esponsibility, the Commission chose to promulgate non-binding policy statements to preserve the “flexibility [of] both the Commission and the coux'ts” until the Commission had sufficient tiixxe to evaluate fully the “complex issues relating to revocation guidelines.” U.S. Sentencing Guidelines Manual ch. 7, pt. A, introductory cmt. (2001) (emphasis added).

Significantly, in the sevex-al years since the 1994 amendment — during which time the courts have x-epeatedly injected Brace’s theox-y — neither the Congx-ess nor the Commission has done anything to call into question the Commission’s initial decision to px-escx-ibe policy statements in lieu of guidelines. Until one or both of them do so, we will not disturb the discretion of the district court to sentence a supervised x-e-lease violator in a manner consistent with 18 U.S.C. § 3583(e). III. The distx-ict coux-t sentenced Bx-uce to 24 months’ incarcex-ation, a tei-m which is well within the statutoi-y limit.

See 18 U.S.C. § 3583(e)(3). Because we conclude that the eoux-t’s discx-etion was not othex-wise restx-icted, we affii-m its resentencing of Bx-uce. So ordered. .

Section 994(a)(1) provides that the Commission has the authority to promulgate "guidelines ... for use of a sentencing court in determining the sentence to be imposed in a criminal case.” 28 U.S.C. § 994(a)(1). .

Section 994(a)(2) provides that the Commission has the authority to promulgate "general policy statements regarding application of the ■guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further [sentencing] .purposes.” 28 U.S.C. § 994(a)(2).