In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1304
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
L AWRENCE T AYLOR,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
Nos. 07-CR-184 & 08-CR-100—Robert L. Miller, Jr., Judge.
S UBMITTED S EPTEMBER 23, 2010—D ECIDED D ECEMBER 21, 2010
Before C UDAHY, FLAUM, and W OOD , Circuit Judges.
C UDAHY, Circuit Judge. Appellant Lawrence Taylor
appeals from his sentences for bank robbery and for
violating the terms of his supervised release relating to
an earlier bank robbery conviction. Because the district
court erred by failing to appreciate its discretion to
impose the sentences either consecutively or concur-
rently, we remand for the court to reconsider that
aspect of the sentencing package.
2 No. 10-1304
I. Facts and Procedural History
In 2002 Lawrence Taylor pleaded guilty to bank rob-
bery charges and was sentenced to a term of incarcera-
tion by the U.S. District Court for the District of Min-
nesota. Sometime in 2007 he was placed on supervised
release, but within less than a year, on August 7, 2008,
he attempted to rob a bank in South Bend, Indiana.
Taylor obtained money from the tellers, but the plan
went awry and Taylor was arrested before he could flee
the scene.
The 2008 robbery resulted in potential terms of impris-
onment with respect to two criminal cases: Case number
07-CR-184, concerning Taylor’s supervised release
arising from the 2002 bank robbery conviction, and case
number 08-CR-100, in which the Government charged
Taylor with the 2008 bank robbery.
Taylor pleaded guilty to the bank robbery on May 7,
2009, and a single sentencing hearing was set for both the
bank robbery and the supervised release cases. Taylor’s
probation officer prepared a “Summary Report of Viola-
tions” in connection with Taylor’s supervised release
case, which suggested an 18- to 24-month sentence.
In addition, the Summary cited a policy statement
within the United States Sentencing Guidelines, U.S.S.G.
§ 7B1.3(f), for the proposition that any term of incarcera-
tion for the supervised release violation must be made
consecutive to the bank robbery sentence. Taylor did not
object to this aspect of the probation officer’s report.
The district court held a sentencing hearing on Feb-
ruary 1, 2010. By this time, Taylor and the Government
No. 10-1304 3
had stipulated to a 12-month sentence for violating the
terms of his supervised release. Therefore, argument at
the sentencing hearing centered around the appropriate
sentence for Taylor’s bank robbery conviction, which
was to be much lengthier. After discussing the factors
relevant to sentencing pursuant to 18 U.S.C. § 3553(a), the
district court determined to impose a 168-month sen-
tence for the 2008 robbery. Then, with respect to the
supervised release sentence, the court stated,
In addition to [the bank robbery sentence discussed
immediately prior], there would be the twelve
months that has to run consecutive, as I understand it,
the twelve months on the supervised release violation.
(Emphasis added.) Taylor did not object to this state-
ment, nor did he ask for concurrent sentences. The district
court imposed consecutive sentences for Taylor’s bank
robbery conviction and his supervised release violation.
Taylor noted a timely but defective appeal from
his sentences. In particular, Taylor’s notice of appeal
indicated only the case number for the bank robbery
case, but not the number pertaining to his supervised
release case. The notice of appeal further indicated that
the appeal was from a “judgment in a criminal case
entered in this action on February 1, 2010.” Taylor’s
argument before this court is directed exclusively to
the consecutive sequencing of his sentence.
II. Applicable Law
Preliminarily to sentencing questions, this case presents
an issue of appellate jurisdiction, which this court is
4 No. 10-1304
obliged to consider sua sponte, see Janky v. Lake Cnty.
Convention & Visitors Bureau, 576 F.3d 356, 359 (7th Cir.
2009), even where neither party argues jurisdiction is
lacking, see Int’l Union of Operating Eng’rs, Local 150 v.
Ward, 563 F.3d 276, 282 (7th Cir. 2009). Specifically,
because Taylor failed to include the case number for his
supervised release case when he filed his notice of
appeal, his appeal was technically noncompliant with
Fed. R. App. P. 3(c), which provides:
(1) The notice of appeal must:
(A) specify the party or parties taking the
appeal . . .; [and]
(B) designate the judgment, order, or part
thereof being appealed[.]
Compliance with Fed. R. App. P. 3(c) is jurisdictional. See
Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct. 678, 116 L. Ed.
2d 678 (1992); AlliedSignal, Inc. v. B.F. Goodrich Co., 183
F.3d 568, 571 (7th Cir. 1999).
Although Rule 3(c) runs to the jurisdiction of this
court, the Supreme Court has explained that it is “liberally
construed.” Smith, 502 U.S. at 248. This court has
described the appropriate inquiry to be “whether suf-
ficient notice was given to apprise the other parties of
the issues challenged.” United States v. Segal, 432 F.3d 767,
772 (7th Cir. 2005). In addition, we have stated that “an
error in designating the judgment will not result in a
loss of appeal if the intent to appeal from the contested
judgment may be inferred from the notice and if the
appellee has not been misled by the defect.” United
States v. Dowell, 257 F.3d 694, 698 (7th Cir. 2001).
No. 10-1304 5
Moving on to the merits, a sentencing court has discre-
tion to make a sentence consecutive or concurrent. See
18 U.S.C. § 3584(a); United States v. Campbell, 617 F.3d
958, 961 (7th Cir. 2010). This includes situations where
the sentence is imposed in connection with a revocation
of supervised release. See United States v. Rodri-
guez-Quintanilla, 442 F.3d 1254, 1256 (10th Cir. 2006). A
sentencing court errs when it has discretion but fails
to exercise that discretion. See United States v. Jackson,
546 F.3d 465, 472 (7th Cir. 2008).
As noted, the probation officer’s Summary Report of
Violations referred to a policy statement contained in
the sentencing guidelines, U.S.S.G. § 7B1.3(f), which
provides as follows:
Any term of imprisonment imposed upon the revoca-
tion of probation or supervised release shall be ordered
to be served consecutively to any sentence of imprison-
ment 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 probation or supervised release.
(Emphasis added.) Despite this facially mandatory lan-
guage, our precedents are unambiguous that the policy
statements on supervised release are not mandatory. See
United States v. Harvey, 232 F.3d 585, 588 (7th Cir. 2000).
Rather, we have explained the import of the supervised
release policy statements as follows:
Rather than establishing guidelines governing the
revocation of supervised release, the Sentencing
6 No. 10-1304
Commission has opted to promulgate a series of
policy statements, including a Revocation Table of
recommended sentencing ranges tied to the severity
of a defendant’s violations and criminal history cate-
gory . . . . Although these policy statements are non-
binding, they are to be given “great weight” by the
sentencing judge.
United States v. Salinas, 365 F.3d 582, 588 (7th Cir. 2004).
In sum, U.S.S.G. § 7B1.3(f) reflects the U.S. Sentencing
Commission’s policy favoring the consecutive se-
quencing of a sentence imposed upon revocation
of supervised release and the sentence for the offense
precipitating the revocation. See U.S.S.G. § 7B1.3(f), Ap-
plication Note 4; United States v. Glasener, 981 F.2d 973, 975-
76 (8th Cir. 1992). The Commission’s supervised re-
lease policy statements are generally entitled to “great
weight.” We have also emphasized, however, that while
the policy statements “are an ‘element in [the sen-
tencing judge’s] exercise of discretion,’ they are not a
substitute for that discretion.” United States v. McClanahan,
136 F.3d 1146, 1149 (7th Cir. 1998) (quoting United States
v. Hill, 48 F.3d 228, 231 (7th Cir. 1995)).
If a defendant fails to raise an objection at sentencing,
this court will review for plain error, asking whether
“(1) error occurred; (2) the error was plain; and (3) the
error affected the defendant’s substantial rights.” United
States v. Pitre, 504 F.3d 657, 661 (7th Cir. 2007). This
remains true when the error alleged is that the sen-
tencing court did not appreciate the advisory nature of
the sentencing guidelines. See United States v. Wilson,
No. 10-1304 7
481 F.3d 475, 484 (7th Cir. 2007); United States v. Santiago,
428 F.3d 699, 705 (7th Cir. 2005).
III. Analysis
A. Appellate Jurisdiction
Taylor’s notice of appeal was sufficient to bring his
case within our jurisdiction. Taylor’s intent to appeal
from both components of his sentencing package may
fairly be inferred from his notice of appeal, despite the
fact that he only included one case number. Both sen-
tences arose from the same set of facts, and Taylor was
sentenced in both cases at the same hearing. His notice
stated that he appealed from “the judgment in a
criminal case entered in this action on February 1, 2010,”
which could refer to either sentence. This falls com-
fortably within the realm of technical, non-misleading
noncompliance with the rules, with respect to which an
appeal should be allowed.
In addition, while we are cognizant that parties cannot
stipulate to jurisdiction, the position of the government
is relevant because our precedents dictate that we
consider whether the appellee has been misled. Here,
the Government has made no argument that it was
misled or otherwise prejudiced by Taylor’s failure to
specify both case numbers on his notice of appeal.
Instead, the Government recommends that this court
credit one of Taylor’s arguments and remand the case. In
view of the liberal construction of Fed. R. App. P. 3(c), the
minor nature of Taylor’s mistake, and the absence of any
8 No. 10-1304
argument that the Government has been misled, we
consider that the notice of appeal was sufficient.
B. Sentencing
We agree with Taylor and the Government that
the district court erred by treating the policy statement
recommendation in U.S.S.G. § 7B1.3(f) as mandating
consecutive sentencing for Taylor’s 2008 bank robbery
case and his supervised release case. As Taylor urges
and the Government concedes, the sentencing court’s
reference to “the twelve months that has to run consecu-
tive, as I understand it” shows without ambiguity that
the sentencing court did not appreciate its discretion to
make Taylor’s sentences either consecutive or concurrent.
Next, we must determine the appropriate remedy for
this sentencing error. Although the supervised release
policy statements were advisory well before the sen-
tencing guidelines themselves were made advisory in
United States v. Booker, 543 U.S. 220, 267, 125 S. Ct. 738, 160
L. Ed. 2d 621 (2005),1 the district court’s error here is
analogous to a case in which the district court failed to
appreciate the advisory nature of the sentencing guide-
lines. In cases of that kind and in which the defendant
did not raise the issue at sentencing, the remedy has
been a limited remand for the district court to deter-
mine whether it would have imposed the same sentence
knowing that the guidelines are not mandatory. See
1
See, e.g., Harvey, 232 F.3d at 588; Hill, 48 F.3d at 231.
No. 10-1304 9
United States v. Paladino, 401 F.3d 471, 484-85 (7th Cir.
2005); Santiago, 428 F.3d at 705-06.
Taylor does not ask for more than this. His reply brief
states,
[T]he government requests that this court affirm the
individual sentences of 168 months for the robbery
and 12 months for the violation of supervised release.
However, in light of the error, the government also
suggests that the sentencing package be remanded
with instructions for the district court to reexamine
whether [they] should be concurrent, partially con-
current, or consecutive. Appellate counsel for
Mr. Taylor does not object to the government’s pro-
posed solution to the problems presented in this
appeal.
Such a limited remand is within our authority under 28
U.S.C. § 2106, see United States v. Young, 66 F.3d 830, 835
(7th Cir. 1995), is consistent with our prior practice, see
United States v. Macari, 453 F.3d 926, 942 (7th Cir. 2006), and
is urged by the Government and accepted by Taylor.2
Taylor is entitled to have the district court exercise its
2
Taylor points out that each of his sentences was made consec-
utive to the other, and that as a practical matter, it only takes
one consecutive sentence to make the package consecutive.
He is apparently concerned that if the district court revises
the consecutive nature of only the supervised release sen-
tence, he will still be stuck with a consecutive sentence package.
On remand the district court should give full effect to our
decision by reconsidering the consecutive nature of both of
Taylor’s sentences.
10 No. 10-1304
discretion as to consecutive or concurrent treatment,
but this does not detract from the “great weight” ordi-
narily accorded to supervised release policy statements.
We express no opinion as to the proper outcome.
We A FFIRM Taylor’s sentences but order a L IMITED
R EMAND for proceedings consistent with this opinion.
12-21-10