FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
November 5, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court
TENTH CIRCUIT
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 07-4068
BO BB Y REDCA P,
Defendant-Appellant.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE DISTRICT OF UTAH
(D .C . N O. 2:97-C R-235-004-JTG )
SUBM ITTED ON TH E BRIEFS: *
Jeremy M . Delicino, Salt Lake City, Utah, for D efendant-Appellant.
Brett L. Tolman, United States Attorney, and Elizabethanne C. Stevens, Assistant
United States Attorney, District of Utah, Salt Lake City, Utah, for Plaintiff-
Appellee.
Before KELLY, M U RPH Y, and O'BRIEN, Circuit Judges.
M U RPH Y, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,
therefore, ordered submitted without oral argument.
Bobby Redcap appeals his thirteen-month sentence imposed for violating
the terms of his supervised release. Redcap contends the district court committed
error by failing to give prior notice of its intention to impose a sentence in excess
of that recommended by the policy statement in Chapter 7 of the United States
Sentencing Guidelines (“Chapter 7”). Exercising jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms.
In 1997, Redcap was sentenced to 120 months’ imprisonment and thirty-six
months’ supervised release following his plea to voluntary manslaughter. After
release from prison, Redcap admitted consuming alcohol in violation of his
conditions of supervised release. Based on Redcap’s criminal history of Category
II and the C lass C violation, the C hapter 7 policy statement recommended a term
of imprisonment ranging from four to ten months. The district court revoked
Redcap’s supervised release and sentenced him to thirteen months in prison and
eleven months’ supervised release. Redcap objected to the sentence because the
district court had not given prior notice of its intention to “depart.” 1 Redcap filed
a timely notice of appeal from the sentence.
1
Redcap improperly uses the term “depart” to refer to a sentence exceeding
the recommended sentence in the policy statement. As we stated in United States
v. Burdex, “[a] sentence in excess of the Chapter 7 range is not a ‘departure’ from
a binding guideline.” 100 F.3d 882, 885 (10th Cir. 1996).
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In reviewing the district court’s application of the Sentencing Guidelines,
this court reviews factual findings for clear error and legal determinations de
novo. United States v. Davis, 151 F.3d 1304, 1308 (10th Cir. 1998). Redcap’s
argument is foreclosed by our precedent in United States v. Burdex, 100 F.3d 882,
885 (10th Cir. 1996). This court has held a sentencing court is under no
obligation to give notice before imposing a sentence in excess of the Chapter 7
sentence range. Id.; see also Davis, 151 F.3d at 1308 (holding Burdex foreclosed
argument that Chapter 7 “departures” require notice).
Redcap asks this court to reconsider Burdex in light of our recent holding
that notice is required for variances under the now-advisory sentencing
guidelines. See United States v. Atencio, 476 F.3d 1099, 1104 (10th Cir. 2007)
(holding this court will continue to apply Rule 32(h) and Burns v. United States,
501 U.S. 129 (1991), notice requirements to post-Booker sentencing variances).
He argues there is no principled distinction between a sentencing range under the
now-advisory guidelines and one under Chapter 7.
Atencio does not affect our holding in Burdex. This court recognizes that
the rationale underlying Burdex, i.e. notice is not required because Chapter 7 is
advisory, is somewhat in tension with our holding in Atencio. Neither the
language nor the logic of Atencio, however, supports the conclusion that notice is
now required under Chapter 7. Atencio focused on the viability of the notice
requirement under Rule 32(h) of the Federal Rules of Criminal Procedure for
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variances from the once-mandatory sentencing guidelines. 476 F.3d at 1102–04.
The ruling merely harmonized pre-Booker notice requirements under Burns and
Rule 32(h) with post-Booker sentencing. Id.
The constitutional infirmity Booker sought to remedy was the process of
basing sentences on judge-found facts by a preponderance of evidence rather than
jury determinations beyond a reasonable doubt. United States v. Booker, 543 U.S.
220, 243–44 (2005). To remedy this violation of the Sixth A mendment, the C ourt
made the once-mandatory sentencing guidelines advisory. Id. at 245–46. The
United States Sentencing Commission, however, never created “guidelines” for
revocation of supervised release. It chose instead “to promulgate policy
statements only” to give courts “greater flexibility” in devising revocation
sentences. U.S. Sentencing Guidelines M anual ch. 7, pt. A, introductory cmts. 1,
3(a) (2006). Because there are no guidelines for violating a condition of
supervised release, the court in Atencio did not have occasion to address the
policy statements promulgated by the United States Sentencing Commission.
Although the once-mandatory guidelines may now appear more like policy
statements, our jurisprudence post-Booker continues to recognize differences
between initial sentencing and revocation of supervised release. Unlike initial
sentencing, the Sixth Amendment does not apply to revocation of supervised
release. Supervised release is “part of the penalty for the initial offense,”
Johnson v. United States, 529 U.S. 694, 700 (2000), and once the initial sentence
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is imposed “further proceedings w ith respect to that sentence [are not] subject to
Sixth Amendment protections.” United States v. Cordova, 461 F.3d 1184, 1186
(10th Cir. 2006) (quotation omitted). The Supreme Court has explained in the
context of a parole revocation that the process “is not part of a criminal
prosecution and thus the full panoply of rights due a defendant in such a
proceeding does not apply.” M orrissey v. Brewer, 408 U.S. 471, 480 (1972).
Redcap argues that failure to provide notice in the context of supervised
release is inconsistent with Rule 32’s aim of promoting a focused and adversarial
resolution of legal and factual issues relevant to fixing sentences. However, this
court has explicitly differentiated between an initial sentence and revocation of
supervised release on this point. “Given a prior conviction and the proper
imposition of conditions on the term of supervised release, when a defendant fails
to abide by those conditions the government is not then put to the burden of an
adversarial criminal trial.” Cordova, 461 F.3d at 1187 (quotation omitted).
Further, our rejection of Redcap’s argument is supported by the language of
the Federal Rules of Criminal Procedure. Revocation of supervised released is
primarily governed by Rule 32.1 which, in contrast to Rule 32(h), does not
contain a notice requirement. Our precedent is clear and we have consistently
held notice is not required for sentences imposed outside of the Chapter 7
suggested range when a district court revokes a defendant’s supervised release.
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This panel has no power to overrule Burdex. See In re Smith, 10 F.3d 723, 724
(10th Cir. 1993) (per curiam).
Redcap’s argument, therefore, must fail and we affirm the district court.
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