                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                   File Name: 09a0372p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                                X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                 -
                                                 -
                                                 -
                                                     No. 07-2438
          v.
                                                 ,
                                                  >
                                                 -
                        Defendant-Appellant. -
 JERRY JACK HEBERT,
                                                 -
                                                N
                   Appeal from the United States District Court
                for the Western District of Michigan at Marquette.
             No. 07-00019-001—Robert Holmes Bell, District Judge.
                              Submitted: September 21, 2009
                          Decided and Filed: October 26, 2009
           Before: MERRITT, GIBBONS, and McKEAGUE, Circuit Judges.

                                   _________________

                                        COUNSEL
ON BRIEF: Paul A. Peterson, FEDERAL PUBLIC DEFENDERS OFFICE, Marquette,
Michigan, for Appellant. Maarten Vermaat, ASSISTANT UNITED STATES ATTORNEY,
Marquette, Michigan, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        MERRITT, Circuit Judge. The question before us in this direct criminal appeal after
a guilty plea to bank robbery is whether the following request by the sentencing judge to the
Bureau of Prisons is appealable under 18 U.S.C. § 3742 or any other provision of federal
law:

        I want you to have a mental health evaluation and counseling, including a
        gambling addiction and a pornography and sex addiction treatment that I
        think you are deserving of.



                                             1
No. 07-2438         United States v. Hebert                                             Page 2


(Transcript of sentencing, record entry no. 35, pgs. 16; ROA vol. 3.)

        Section 3742(a) reads as follows:

        § 3742. Review of a sentence

                (a) Appeal by a defendant. — A defendant may file a notice of
        appeal in the district court for review of an otherwise final sentence if the
        sentence —
                (1) was imposed in violation of law;
                (2) was imposed as a result of an incorrect application of the
                sentencing guidelines; or
                (3) is greater than the sentence specified in the applicable
                guideline range to the extent that the sentence includes a
                greater fine or term of imprisonment, probation, or
                supervised release than the maximum established in the
                guideline range, or includes a more limiting condition of
                probation, or supervised release under section 3563(b)(6) or
                (b)(11) than the maximum established in the guideline
                range; or
                (4) was imposed for an offense for which there is no
                sentencing guideline and is plainly unreasonable.
        The District Court’s request for evaluation and counseling by the Bureau is only a
request, not the type of sentencing action contemplated by § 3742. Prior to this review
provision adopted by the Sentencing Reform Act of 1984, sentences imposed by the district
courts were not ordinarily subject to appellate review. The purpose of § 3742 was to make
certain guideline sentences reviewable, not to make all of the district courts’ request for
evaluation, admonitions, warnings and advice appealable. Taking into account the prior
federal law of sentencing and the limited scope of the 1984 amendment found in § 3742, we
do not believe that the district court’s request of the Bureau of Prisons is the type of “final
sentence” that Congress intended to except from the previous policy limiting appellate
review. Our prior history of federal sentencing before the Sentencing Reform Act of 1984
is important and helpful in understanding the limited scope of federal appellate review
adopted in § 3742. Other circuits that have considered the issue of appellate review in such
cases have reached the same decision that appellate review is not available when the
sentencing judge suggests that the Bureau of Prisons should evaluate or treat certain physical
or emotional problems. See, e.g., United States v. Kerr, 472 F.3d 517 (8th Cir. 2006) (sex
offender treatment and counseling request not appealable), and the cases cited therein.
No. 07-2438         United States v. Hebert                                          Page 3


        Accordingly, because the issue respecting the District Judge’s request to the Bureau
of Prisons is the only issue raised on appeal, the appeal is dismissed for lack of appellate
jurisdiction.
