In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3748
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAMES W. S NYDER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:97-cr-00062-01—George W. Lindberg, Judge.
A RGUED O CTOBER 25, 2010—D ECIDED M ARCH 18, 2011
Before W OOD , W ILLIAMS, and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. James W. Snyder was sen-
tenced to eight years’ reimprisonment upon revocation
of his supervised release. When the district court
imposed Snyder’s sentence, it did not acknowledge the
advisory range recommended by the United States Sen-
tencing Guidelines. Nor is it clear whether the court
considered, as required by 18 U.S.C. § 3553(a)(6), whether
the sentence would create unwarranted disparities
2 No. 09-3748
among similarly situated defendants. Because we cannot
tell whether the court considered the advisory range
and the § 3553(a) factors, we vacate Snyder’s sentence
and remand for resentencing.
I. BACKGROUND
In October 1996, Snyder and another man took an
eleven-year-old boy to Snyder’s house, where they
showed the boy pornography and made him drink beer
and smoke marijuana. Snyder and his companion then
sodomized the boy, forced the boy to perform oral sex
on them, and took pictures of themselves engaging
in sex acts with the boy. A search of Snyder’s
house revealed that Snyder had more than 1,000 child
pornography pictures on his computer and that he
traded pornography with friends online.
Snyder was charged with using a minor to engage in
sexually explicit conduct for the purpose of producing
visual depictions of such conduct in violation of 18 U.S.C.
§ 2251(a) (Count 1); receipt of child pornography in
violation of 18 U.S.C. § 2252(a)(2) (Count 2); distribution
of child pornography in violation of 18 U.S.C. § 2252(a)(2)
(Count 3); and possession of child pornography in viola-
tion of 18 U.S.C. § 2252(a)(3)(B) (Count 4). After a jury
trial, Snyder was convicted of all four counts and was
sentenced to 168 months in prison, a six-year term 1 of
1
Both the government and Snyder asserted in their briefs that
Snyder was sentenced to four concurrent six-year terms of
(continued...)
No. 09-3748 3
supervised release, and a $15,000 fine.
Snyder began serving his term of supervised release
on April 16, 2009. On June 17, 2009, at the request of
Snyder’s probation officer, Snyder’s conditions of super-
vised release were modified to prohibit him from using
a computer with access to the internet, to prohibit him
from possessing pornography, and to require him to
participate in sex-offender treatment.
Unfortunately, Snyder did not comply with the
modified conditions. Although he went to sex-offender
treatment, he showed such resistance that he was eventu-
ally discharged from the program due to non-compliance.
He also accessed several pornographic websites de-
picting older men having sex with younger boys. The
websites contained a disclaimer that all participants
were over eighteen years of age.
1
(...continued)
supervised release. However, the court’s sentencing order
stated, “Upon release from reimprisonment, the defendant
shall be on supervised release for a term of six (6) years.” To
determine whether this was a clerical error or whether Snyder
was actually sentenced to a single term of six years, we
ordered the original sentencing transcript. It turns out that
the court sentenced Snyder to only one term of supervised
release: “It is ordered that you serve a term of supervised
release of six years.” (emphasis added). This understanding is
confirmed by the court’s statements during the revocation
hearing: “Mr. Snyder was convicted . . . and was sentenced on
June 11, 1998 to 168 months imprisonment on each count to
run concurrently, 72 months of supervised release, a $15,000
fine, and a $200 special assessment.” (emphasis added).
4 No. 09-3748
On September 29, 2009, Snyder’s probation officer
filed a Special Report recommending that Snyder’s super-
vised release be revoked due to three violations: (1) failure
to comply with sex-offender treatment; (2) using a com-
puter to access the internet; and (3) viewing pornography.2
At his supervised release revocation hearing, Snyder
asked that he be given an opportunity to return to sex
offender treatment with a new therapist, attributing
his prior recalcitrance to stress and to personal disagree-
ments with his former therapist. Snyder’s probation
officer recommended nine months per each of the
four original convictions, imposed consecutively. The
government asked for what it believed to be the
statutory maximum of two years per conviction to run
consecutively.
2
Snyder argued to the district court that the second and third
violations (using a computer to access the internet and
viewing pornographic websites) are in reality a single viola-
tion. He does not, however, make that argument on appeal.
He also does not contend, nor did he argue to the district
court, that the conditions were unnecessary or unreasonable.
Compare United States v. Silvious, 512 F.3d 364, 371 (7th Cir.
2008) (explaining that “a total ban on the use of computers
with access to the Internet is in most cases an overbroad
condition of supervised release”), with United States v. Angle,
598 F.3d 352, 361 (7th Cir. 2010) (finding that it was not an
abuse of discretion for the district court to disallow “personal”
access to internet services where the defendant had used
a computer to commit sex offenses). Therefore, we do not
address either of these issues.
No. 09-3748 5
The district court imposed eight years. In the court’s
view, Snyder remained very dangerous to children.
According to the court, the conditions Snyder violated
were central to the efforts to rehabilitate him and to
protect children. Snyder had violated those conditions
so soon after his release from prison and after the mod-
ification of the terms of his release that the court
believed that attempting to supervise Snyder while on
release was “a fool’s errand.” The court concluded
that the “safest and most appropriate course” was to
incapacitate Snyder for as long as possible. During the
hearing, the court made no mention of the advisory
range recommended by the Guidelines. Snyder appeals
his sentence.
II. ANALYSIS
Snyder contends that the district court committed
procedural error because it did not take into account the
advisory range under the Guidelines and did not con-
sider whether imposing an above-Guidelines sentence
would create unreasonable disparities among similarly
situated defendants. We review the procedures followed
by the district court de novo. See United States v. Gibbs,
578 F.3d 694, 695 (7th Cir. 2009).
As with an initial sentencing decision, when deciding
whether to revoke a term of supervised release, the
district court must begin its analysis with the recom-
mended imprisonment range found in the Guidelines.
United States v. Neal, 512 F.3d 427, 438 (7th Cir.
2008). Although the advisory range “informs rather than
6 No. 09-3748
cabins” the court’s discretion, the court must neverthe-
less take the Guidelines into account. Id.
The court must also consider the factors enumerated
in 18 U.S.C. § 3553(a): (1) the nature and circumstances
of the offense; (2) the history and characteristics of the
defendant; (3) the need to deter future crime, protect the
public, and provide the defendant with necessary
services such as vocational training and medical care;
(4) the Sentencing Commission’s recommendations re-
garding the sentencing range; (5) the Sentencing Com-
mission’s policy statements; and (6) the need to avoid
unwarranted sentencing disparities. See United States v.
Carter, 408 F.3d 852, 854 (7th Cir. 2005). While the
court need not make factual findings as to each factor,
the record should reveal that the factors were consid-
ered. Neal, 512 F.3d at 438.
Section 3583(e)(3) provides that a court may revoke a
term of supervised release, “and require the defendant to
serve in prison all or part of the term of supervised
release authorized by statute for the offense that
resulted in such term of supervised release . . . except that
a defendant whose term is revoked . . . may not be
required to serve . . . more than two years in prison if
such offense is a class C or D felony.” § 3583(e)(3). In 1997,
when Snyder was sentenced, all of his convictions were
class C felonies.3 Had Snyder been sentenced to four
3
Offenses with statutory maximums between 10 and 25 years
are class C felonies. § 3559(a)(3). In 1997, Snyder’s first convic-
(continued...)
No. 09-3748 7
terms of supervised release, the maximum statutory
sentence the court could have imposed upon revocation
would have been two years per conviction that resulted
in a term of supervised release, to run consecutively.4 See
United States v. Deutsch, 403 F.3d 915, 917 (7th Cir. 2005)
(the court can impose consecutive terms upon revoca-
tion of concurrent terms of supervised release).
3
(...continued)
tion carried a statutory maximum sentence of 20 years. § 2251(d)
(1997). The statutory maximum for his other convictions was
15 years. See §§ 2252(a)(2), (a)(3)(B) (1997).
4
However, because Snyder was sentenced to only “a term” of
supervised release, the maximum term of reimprisonment the
court could impose under § 3583(e)(3) was 24 months. A
defendant cannot be reimprisoned for violating the condi-
tions of non-existent terms of supervised release. See United
States v. Eskridge, 445 F.3d 930, 935 (7th Cir. 2006) (defendant
sentenced to “a term” of supervised release could not be
sentenced to consecutive terms of imprisonment after vio-
lating the conditions of his release).
We also note that it is odd that the court sentenced Snyder
to only one term of supervised release because when Snyder
was sentenced the maximum term of supervised release for
a Class C felony under § 3583(b) was three years. It may be
that the court intended to sentence Snyder to two three-year
terms of supervised release or some other combination.
However, even if the court meant to sentence Snyder differ-
ently, it no longer has the authority to modify the original
sentence to correct the error. See id. at 934 (“A district judge
may still correct a final judgment in a criminal case to reflect
the sentence he actually imposed but he cannot change the
sentence he did impose even if the sentence was erroneous.”).
8 No. 09-3748
The recommended range under the Guidelines would
have been much lower. There are three grades of super-
vised release violations under the Guidelines. A Grade C
violation encompasses conduct constituting an offense
punishable by less than a year or a violation of any other
condition of supervised release. 5 U.S.S.G. § 7B1.1(a)(3).
There is no dispute that Snyder’s violations fall under
the “violation of any other condition of supervised re-
lease” and are therefore Grade C violations.
The Guidelines range applicable to Grade C violations
is three to nine months for an offender who, like Snyder,
has a criminal history category of I. U.S.S.G. § 7B1.4(a).
In his recommendation, the probation officer assumed
that a sentence of nine months for each conviction to
be served consecutively, or three years in total, was at
the very high end of what the Guidelines recommended
for Snyder’s violations. The sentence imposed by the
court was over two-and-a-half times greater than that.
Although the district court need not explain why a
sentence differs from the Sentencing Commission’s recom-
mendation as long as the sentence is appropriate under
5
In contrast, Grade A violations involve conduct constituting
an offense punishable by more than one year of imprison-
ment that is: (i) a crime of violence; (ii) a controlled substance
offense; (iii) involves possession of a firearm or a destructive
device; or an offense punishable by more than 20 years im-
prisonment. See U.S.S.G. § 7B1.1(a)(1). Grade B violations
involve conduct constituting an offense punishable by more
than one year of imprisonment. See U.S.S.G. § 7B1.1(a)(2).
No. 09-3748 9
the § 3553(a) factors, the court must still “start by using
the Guidelines to provide a benchmark that curtails
unwarranted disparities.” United States v. Kirkpatrick, 589
F.3d 414, 416 (7th Cir. 2009). The court “need not accept
the Sentencing Commission’s penological framework,”
but it may not ignore the Sentencing Commission’s
views embodied in the Guidelines. See United States v.
Bartlett, 567 F.3d 901, 908-09 (7th Cir. 2009). A departure
from the Guidelines, especially a significant one, must be
carefully explained. See Gall v. United States, 552 U.S. 38,
46 (2007). The court here, however, made no reference
to the advisory range at all.
Also, we cannot be sure that the court considered
whether imposing what it believed to be the harshest
possible sentence would lead to unwarranted disparities
among similarly situated defendants. The court ex-
plained that, in its view, Snyder needed to be sentenced
to the maximum term legally permissible because he
was dangerous to children, his violations were serious,
and they occurred shortly after his release. But these
reasons mainly address Snyder’s history and characteris-
tics, the nature of his offenses, and the need to deter
future crime and protect the public. See § 3553(a)(1)-(a)(3).
The court never discussed whether Snyder’s sentence
would create unwarranted sentencing disparities among
defendants. See Bartlett, 567 F.3d at 907 (explaining that
the kind of disparity with which § 3553(a)(6) is concerned
is an unjustified difference across judges or districts).
“Whenever a court gives a sentence substantially differ-
ent from the Guidelines’ range, it risks creating unwar-
10 No. 09-3748
ranted sentencing disparities, in violation of 18 U.S.C.
§ 3553(a)(6), for most other [courts] will give sentences
closer to the norm.” Kirkpatrick, 589 F.3d at 415. “[L]eaping
close to the statutory maximum creates a risk of unwar-
ranted disparity with how similar offenders fare else-
where—not only because it may overpunish [a defen-
dant], but because it leaves little room for the marginal
deterrence of persons whose additional deeds are more
serious . . . .” Id. While we do not express an opinion as
to whether an above-Guidelines sentence is warranted in
this case, the district court could not impose such a sen-
tence without careful consideration of the advisory
range and the statutory factors. See Gall, 552 U.S. at 50
(“If [the court] decides that an outside-Guidelines sen-
tence is warranted, [it] must consider the extent of the
deviation and ensure that the justification is sufficiently
compelling to support the degree of the variance. We
find it uncontroversial that a major departure should
be supported by a more significant justification than
a minor one.”).
Had the district court correctly calculated and carefully
reviewed the Guidelines range, we would be more confi-
dent that it also considered the need to avoid unwar-
ranted disparities. See id. at 54 (“[A]voidance of unwar-
ranted disparities was clearly considered by the Sen-
tencing Commission when setting the Guidelines ranges.
Since the District Judge correctly calculated and carefully
reviewed the Guidelines range, he necessarily gave sig-
nificant weight and consideration to the need to avoid
unwarranted disparities.”). But there is nothing in the
record to suggest that the court did either.
No. 09-3748 11
The government contends that any error committed
by the district court was harmless because the court
would have imposed the same sentence regardless. But
adopting the government’s position in this case would
eviscerate the requirement that the district court take
the Guidelines into account. A failure to altogether con-
sider the Guidelines is not harmless. See Gibbs, 578 F.3d
at 695-96 (remanding for resentencing where the district
court did not acknowledge the advisory range).
The government also argues that Snyder forfeited his
contention that the district court erred because he did not
“object” to the sentence imposed. But we have re-
peatedly held that the rules do not require a defendant
to complain about a judicial choice after it has been
made so long as the defendant argued for a lower sen-
tence before the court imposed the sentence. Bartlett,
567 F.3d at 910; see also United States v. Paul, 542 F.3d 596,
599 (7th Cir. 2008). Snyder argued for a lower sentence
before the court sentenced him and therefore preserved
his options on appeal.
Finally, Snyder also argues on appeal that his sentence
is substantively unreasonable. Because we find that the
district court did not follow the proper procedure in
sentencing Snyder, we will not address whether the
sentence is substantively unreasonable. The parties
should address on remand the impact of Snyder’s original
sentence of one six-year term of supervised release in
light of § 3583(e)(3).
12 No. 09-3748
III. CONCLUSION
We therefore V ACATE Snyder’s sentence and R EMAND
for proceedings consistent with this opinion.
3-18-11