United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 15, 2002 Decided April 5, 2002
No. 01-3098
United States of America,
Appellee
v.
Floyd Bruce,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 94cr00488-01)
A.J. Kramer, Federal Public Defender, argued the cause
for the appellant.
Suzanne Grealy Curt, Assistant United States Attorney,
argued the cause for the appellee. Roscoe E. Howard, Jr.,
United States Attorney, and John R. Fisher, Elizabeth Tros-
man, Thomas E. Zeno and Joan Draper, Assistant United
States Attorneys, were on brief.
Before: Sentelle, Henderson and Tatel, Circuit Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: The appellant, Floyd Bruce, 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 sen-
tencing 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 indict-
ment against Bruce, charging him with bank fraud, in viola-
tion of 18 U.S.C. s 1344 (Count One), and with uttering and
possessing forged securities of an organization, in violation of
18 U.S.C. s 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. Bruce, 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 peri-
od 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 moni-
toring 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 re-
mained 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, Bruce 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.
s 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 Bruce) with a criminal history
of category II was six to 12 months, see U.S.S.G. s 7B1.4.
The parties did argue, however, about whether Chapter 7 is
binding upon the district court. Bruce contended that a 1994
amendment to 18 U.S.C. s 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 state-
ments 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. Cir. 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. s 3553--remain non-binding.
The court, therefore, held that it could impose a sentence of
up to 36 months' incarceration for Bruce's uncontested super-
vised 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. Bruce
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.
s 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
Bruce contends, the Congress's post-Hooker amendment to
18 U.S.C. s 3553(a) rendered the policy statements mandato-
ry. 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 (Com-
mission) 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. s 994(a)(3). The
Commission made clear that "[a]fter considered debate" it
had decided to promulgate only policy statements--not guide-
lines--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 opportuni-
ties 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. s 3553 ("Impo-
sition 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 rehabilita-
tion]. 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 com-
mitted by the applicable category of defendant as set
forth in the guidelines that are issued by the Sentenc-
ing Commission pursuant to 28 U.S.C. 994(a)(1)1 and
that are in effect on the date the defendant is sen-
tenced;
(5) any pertinent policy statement issued by the Sen-
tencing Commission pursuant to 28 U.S.C. 994(a)(2)2
__________
1 Section 994(a)(1) provides that the Commission has the authori-
ty to promulgate "guidelines ... for use of a sentencing court in
determining the sentence to be imposed in a criminal case." 28
U.S.C. s 994(a)(1).
2 Section 994(a)(2) provides that the Commission has the authori-
ty 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. s 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 con-
sideration, the court shall consider only the sentencing
guidelines, policy statements, and official commentary of
the Sentencing Commission. In the absence of an appli-
cable 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. s 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 rehabilita-
tion]. 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 Com-
mission pursuant to section 994(a)(3) of title 28,
United States Code; ...
18 U.S.C. s 3553(a) (emphases added). Subsection (b) ("Ap-
plication 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 sen-
tence of the kind and within the range referred to in subsec-
tion (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 sentenc-
ing 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 (1997); United States v. Hofierka,
83 F.3d 357, 360-61 (11th Cir. 1996) (per curiam), cert. denied,
519 U.S. 1071 (1997); United States v. Escamilla, 70 F.3d
835, 835 (5th Cir. 1995) (per curiam), cert. denied, 517 U.S.
1127 (1996); United States v. West, 59 F.3d 32, 33-36 (6th
Cir.), cert. denied, 516 U.S. 980 (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 pur-
suant to section 994(a)(3)" when imposing a sentence for a
violation of supervised release. 18 U.S.C. s 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. s 3553(b). Bruce contends that because subsection
(a)(4)--specifically (a)(4)(B)--now references policy state-
ments, 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 viola-
tions 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 textual-
ly. 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 "Congress-could-have" argu-
ment, however, works as much to Bruce's detriment as it does
to his advantage. As its heading suggests, section 3553(b)
pertains to "[a]pplication of [the] guidelines" and only asks a
court to "consider" or have "due regard for" the "applicable
policy statements" in "the absence of an applicable sentencing
guideline." 18 U.S.C. s 3553(b) (emphasis added). Thus, as
the Second Circuit has put it, "[a]bsent any applicable guide-
lines in Chapter 7, s 3553(b)'s mandatory language does not
apply." Cohen, 99 F.3d at 71 (citing West, 59 F.3d at 35).
Without much difficulty, the Congress could have amended
3553(b) to require adherence to policy statements. It did not;
accordingly, we are left with a statute that plainly requires a
district court to apply guidelines (where they exist) but
merely consider (i.e., "reflect on," "think about," "deliberate,"
"ponder" or "study") policy statements.
Bruce resists this conclusion, claiming that "it is not at all
clear whether Congress intended the term 'guidelines' [in
section 3553(b)] to exclude policy statements." Br. of Appel-
lant at 19. For several reasons, we disagree. First, in
mutually exclusive terms, section 994(a)(3) of title 28 requires
the Commission to promulgate "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. s 994(a)(3) (emphasis
added). Second, pursuant to that responsibility, the Commis-
sion chose to promulgate non-binding policy statements to
preserve the "flexibility [of] both the Commission and the
courts" until the Commission had sufficient time 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 several
years since the 1994 amendment--during which time the
courts have repeatedly rejected Bruce's theory--neither the
Congress nor the Commission has done anything to call into
question the Commission's initial decision to prescribe 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 release violator in a manner consistent
with 18 U.S.C. s 3583(e).
III.
The district court sentenced Bruce to 24 months' incarcera-
tion, a term which is well within the statutory limit. See 18
U.S.C. s 3583(e)(3). Because we conclude that the court's
discretion was not otherwise restricted, we affirm its resen-
tencing of Bruce.
` So ordered.