                                                                                                                           Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-7-1997

USA v. Schwegel
Precedential or Non-Precedential:

Docket
97-1082




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Recommended Citation
"USA v. Schwegel" (1997). 1997 Decisions. Paper 239.
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Filed October 7, 1997

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1082

UNITED STATES OF AMERICA

v.

JOSEPH SCHWEGEL,
       Appellant

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(District Court No. 92-cr-00426-2)

Argued: August 11, 1997

Before: ALITO, LEWIS, and McKEE, Circuit Judges
(Opinion Filed: October 7, 1997)

       David L. McColgin, Esq. (argued)
       Elaine DeMasse, Esq.
       Maureen Kearney Rowley, Esq.
       DEFENDER ASSOCIATION OF
        PHILADELPHIA
       Federal Court Division
       Suite 800 - Lafayette Building
       437 Chestnut Street
       Philadelphia, Pennsylvania 19106-
        2414

       Attorneys for Appellant




       Michael R. Stiles
       United States Attorney

       Walter S. Batty, Jr.
       Assistant United States Attorney
       Chief of Appeals

       Ewald Zittlau (argued)
       Assistant United States Attorney
       Room 1250, 615 Chestnut Street
       Philadelphia, PA 19106
       Attorneys for Appellee

OPINION OF THE COURT

PER CURIAM:

This appeal presents the question whether under 18
U.S.C. S3553(a)(4), as amended in 1994, a district court, in
imposing a term of imprisonment upon revocation of
supervised release, is required (in the absence of grounds
for departure) to impose a term within the range indicated
by U.S.S.G. S7B1.4 (Policy Statement). Prior to the 1994
amendment, we held that the sentencing ranges set out in
U.S.S.G. S7B1.4 were merely advisory. United States v.
Blackston, 940 F.2d 877, 892-93 (3d Cir. 1991). Since the
1994 amendment, all but one of the courts of appeals that
have addressed this question have reached the same
conclusion. In accordance with these decisions, we now
hold that, despite the 1994 amendment, the ranges set out
in U.S.S.G. S7B1.4 remain advisory and not binding.

Joseph Schwegel pled guilty and was convicted in 1993
for several drug-related offenses, and he was sentenced to
40 months of imprisonment followed by 60 months of
supervised release. After serving 31 months of
imprisonment, he was placed on supervised release, and it
is uncontested that he committed several violations of the
conditions of his release, including testing positive for
drugs.

                                2



Under U.S.S.G. S7B1.4, Schwegel's range of
imprisonment was six to twelve months, but the prosecutor
argued that this range was merely advisory and
recommended that the court impose a sentence of 60
months. (App. 37a-38a). Schwegel's attorney agreed that
the ranges set out in U.S.S.G. S7B1.4 were not binding, but
he urged the court to "consider a sentence more in line with
the guidelines," specifically, a sentence of"six months
incarceration, three months in an inpatient program,
something of that sort." (App. 33a-34a). The district court
judge stated that he did not think that six months would be
"enough to wean" Schwegel of his drug addiction, and the
judge therefore sentenced him to three years of
imprisonment followed by one year of supervised release.

On appeal, Schwegel argues that, contrary to the position
taken before the district court, the sentencing range set out
in U.S.S.G. S7B1.4 was mandatory and that the district
court committed plain error in imposing a sentence outside
that range. Schwegel contends that the plain meaning of
18 U.S.C. SS3553(a)(4)(B) and 3553(b) (1994) dictates
acceptance of his argument. Section 3553(b) provides in
pertinent part as follows:

        (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.

18 U.S.C. S3553(b). According to Schwegel, this provision
requires a sentencing court (unless there is a basis for
departure) to comply with any sentencing range "referred
to" in 18 U.S.C. S3553(a)(4). And, Schwegel maintains, the
ranges set out in U.S.S.G. S7B1.4 are "referred to" in 18
U.S.C. S3553(a)(4)(B), which was added in a 1994
amendment. Under this provision, a sentencing court is
required to "consider," among other things

        (4) the kinds of sentence and the sentencing range
       established for- . . .

                                3



         (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. S3553(a)(4)(B). Since U.S.S.G. S7B1.4 is a policy
statement that was issued pursuant to 28 U.S.C. S994(a)(3)
and that sets out sentencing ranges for violation of
supervised release, Schwegel argues, 18 U.S.C.
S3553(a)(4)(B) refers to the sentencing ranges set out in
U.S.S.G. S7B1.4, and those ranges, by virtue of 18 U.S.C.
S3553(b), are binding.

We do not agree with Schwegel that the plain meaning of
18 U.S.C. S3553 requires us to accept his argument.
Although Schwegel maintains, as previously noted, that 18
U.S.C. S3553(b) dictates that a sentencing court comply
with any sentencing range "referred to in subsection(a)(4),"
it is reasonable to read this provision more narrowly to
mandate compliance with only those sentencing ranges set
out in "guidelines," rather than advisory policy statements.
Under 18 U.S.C. S3553(b), a sentencing court must impose
a sentence "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 . .. ." 18 U.S.C.
S3553(b) (emphasis added). Accordingly, it is reasonable to
read the term "range" in 18 U.S.C. S3553(b) to mean a
range set out in a guideline. Moreover, the heading of 18
U.S.C. S 3553(b), "Application of guidelines in imposing a
sentence," also tends to support the view that this provision
applies to ranges set out in guidelines as opposed to policy
statements.

Schwegel contends that the term "guidelines" in 18
U.S.C. S3553(b) means "the entire system of the Federal
Sentencing Guidelines, including policy statements."
Appellant's Br. at 13. But while it is not inconceivable that
Congress might have used the term "guidelines" in this
sense, that is certainly not the term's plain meaning. Thus,
in making this argument, Schwegel implicitly recognizes the

                                4



necessity of looking beyond the plain meaning of 18 U.S.C.
S3553's text.

In United States v. Cohen, 99 F.3d 69 (2d Cir. 1996), the
court seems to have held that the plain meaning of 18
U.S.C. S3553(b), far from supporting Schwegel's position,
actually refutes it. Cohen appears to have held that the
plain meaning of 18 U.S.C. S3553(b) is that only those
sentencing ranges contained in guidelines are binding. Id.
at 71. While we are reluctant to go that far, we are
convinced that the plain meaning of 18 U.S.C. S3553 does
not require us to adopt Schwegel's position.

Looking beyond the bare statutory language, we conclude
that the sentencing ranges set out in U.S.S.G. S7B1.4
remain merely advisory. Under 28 U.S.C. S994(a)(3), the
Sentencing Commission is required to issue guidelines or
policy statements concerning revocation of supervised
release. To comply with this requirement, the Commission
promulgated Chapter Seven of the Guidelines Manual in
1990. As we explained in Blackston, 940 F.2d at 893:

        Realizing that events were proceeding rapidly, and
       that, lacking experience in the area, it needed
       additional time to consider the complex issues relating
       to revocation of probation and supervised release, the
       Sentencing Commission opted for advisory policy
       statements in order to maximize flexibility. See id.
       ("[T]he Commission anticipates that, because of its
       greater flexibility, the policy statement option will
       provide better opportunities for evaluation by the
       courts and the Commission."). In issuing only advisory
       policy statements, the Sentencing Commission sought
       to set in motion an "evolutionary process," of which the
       policy statements were only the first step. See id. Ch.
       7, Part A5. After monitoring and evaluating feedback
       from judges, probation officers, and practitioners, the
       Sentencing Commission expected to promulgate formal
       revocation guidelines. See id.

To date, the Commission has still not issued guidelines
concerning the revocation of supervised release. Nor has
the Commission altered its view that the Chapter Seven
policy statements are merely advisory.

                                5



Although Schwegel argues that the 1994 amendment that
added 18 U.S.C. S3553(a)(4)(B) made the sentencing ranges
in U.S.S.G. S7B1.4 mandatory, it is apparent that this was
not Congress's intent. The 1994 amendment was proposed
by the Sentencing Commission, see 136 Cong. Rec.
S14894-95 (daily ed. Oct. 10, 1990), which continues to
view those ranges as merely providing guidance and as the
first step in an evolutionary process. We do not think that
Congress, in adopting an amendment recommended by the
Commission, meant to overrule the Commission's view that
it was premature to require rigid adherence to the U.S.S.G.
S7B1.4 ranges.

The legislative history shows that the 1994 amendment,
which was initially proposed by the Commission in 1990,
had a different purpose. As the then-Chairman of the
Commission, Fourth Circuit Judge William W. Wilkins, Jr.,
explained in a letter to Senator Strom Thurmond, the
purpose of the amendment was to make it clear 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
initial sentencing. See 136 Cong. Rec. S14894-95. This was
necessitated by United States v. Smith, 907 F.2d 133 (11th
Cir. 1990), in which the Eleventh Circuit had held that the
guideline range applicable to the initial sentencing decision
also constrains the court when it revokes probation. Judge
Wilkins explained:

       [T]o the extent this view of the law is sustained, it will
       impede Commission plans to implement a system of
       policy statements for revocation decisions, preparatory
       to issuing guidelines for revocation at a future date.
       Toward this end, the Commission has just approved a
       set of policy statements to guide courts in making
       decisions regarding the revocation of probation and
       supervised release and plans to distribute th[e]m in the
       next several weeks. The Eleventh Circuit decision in
       Smith would appear, however, effectively to block
       courts in that circuit from using these policy
       statements for probation revocation decisions.

                                6



        The attached proposed legislative change modifies
       the statutory language upon which the Eleventh
       Circuit rested its decision to promote an interpretation
       that is consistent with Congressional intent under the
       Sentencing Reform Act. It specifically references the
       guidelines or policy statements issued by the
       Commission under [2]8 U.S.C. S994(a)(3) to remove any
       doubt that these pronouncements -- not those
       applicable to initial sentencing decisions -- are the
       appropriate reference for revocation purposes.

136 Cong. Rec. S14895.

The bill proposed by the Sentencing Commission was not
enacted in 1990 and was reintroduced by Senator
Thurmond in 1991 and 1993. Senator Thurmond stated
that the legislation had been "suggested to me by the U.S.
Sentencing Commission" and explained its purpose as
follows:

       [T]his bill provides that decisions to revoke supervised
       release should be based upon sentencing guidelines
       and policy statements issued by the Commission
       specifically for that purpose. The effect of this change
       would be to settle a split among the Federal courts on
       the issue of whether the guidelines applicable to initial
       sentencing of defendants also apply to probation
       revocation decisions.

137 Cong. Rec. S7769-70 (daily ed. June 13, 1991).
Senator Thurmond added that the bill would require that,
in choosing an appropriate sentence for a violation of
probation, "the court's discretion would be guided by any
guidelines or policy statements issued by the Sentencing
Commission expressly to govern probation revocation"
rather than by the guideline range for the defendant's
original sentencing. 139 Cong. Rec. S2150 (daily ed. Feb.
25, 1993). It therefore seems clear that Congress did not
enact 18 U.S.C. S3553(a)(4)(B) for the purpose of making
the sentencing ranges set out in Chapter Seven policy
statements mandatory.
Schwegel cites one passage in the legislative history as
supporting his position. Referring to a predecessor of the
bill that was ultimately enacted, Senator Thurmond said

                                7



that it was intended to "make more explicit the intent of
Congress in the Sentencing Reform Act that, when revoking
a probationary sentence, the guideline range operative at
the time the defendant was sentenced to probation is no
longer applicable; rather the court is constrained only by
the maximum statutory penalties for the offense and any
Sentencing Commission guidelines or policy statements
specifically applicable to probation revocation." 137 Cong.
Rec. S7770 (1991) (statement of Senator Thurmond)
(emphasis added). However, this statement does not
persuade us that Congress meant to require the imposition
of a sentence within the ranges set out in U.S.S.G. S7B1.4.
There is no question that under 18 U.S.C. S3553(a)(4), a
sentencing court must "consider" the range set out in
U.S.S.G. S7B1.4; and therefore, to that extent, the
sentencing court is, as Senator Thurmond stated,
"constrained" by U.S.S.G. S7B1.4. We are not persuaded
that Senator Thurmond's statement was intended to
suggest anything more.

The Second, Fifth, Sixth, Seventh, Eighth, Tenth, and
Eleventh Circuits have issued published decisions rejecting
the argument that Schwegel now advances. See United
States v. Hale, 107 F.3d 526 (7th Cir. 1997); United States
v. Cohen, 99 F.3d 69 (2d Cir. 1996), cert. denied, 117 S.Ct.
1699 (1997); United States v. Hurst, 78 F.3d 482 (10th Cir.
1996); United States v. Hofierka, 83 F.3d 357 (11th Cir.
1996), cert. denied sub nom. Andrews v. United States, 117
S.Ct. 717 (1997); United States v. Escamilla, 70 F.3d 835
(5th Cir. 1995), cert. denied, 116 S.Ct. 1368 (1996); United
States v. Carr, 66 F.3d 981 (8th Cir. 1995); United States v.
West, 59 F.3d 32 (6th Cir.), cert. denied, 116 S.Ct. 486
(1995). We agree with these decisions. To the extent that
United States v. Plunkett, 94 F.3d 517 (9th Cir. 1996)
reaches a different conclusion, we respectfully disagree. We
therefore hold that the district court was not required to
sentence Schwegel to a sentence within the range set out in
U.S.S.G. S7B1.4.

Schwegel argues that, even if this is so, the district court
nevertheless abused it discretion by failing to give adequate
consideration to the policy statement range. We do not
agree. The court noted that the policy statement called for

                                8
a sentence of six to twelve months, but the court decided
that a longer sentence was necessary in order to give
Schwegel sufficient time in custody to recover from his drug
addiction. See App. at 42a. We review the district court's
decision to exceed the policy statement range under an
abuse of discretion standard. See, e.g., Hofierka, 83 F.3d at
361-62. We conclude that the district court properly
considered the policy statement sentencing range and
properly exercised its discretion.

For these reasons, we affirm the judgment of the district
court.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                9
