ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(District Court No. 92-cr-00426-2)
Before: ALITO, LEWIS, and McKEE, Circuit Judges
Opinion Filed: October 7, 1997
This appeal presents the question whether under 18 U.S.C. Section(s) 3553(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. Section(s) 7B1.4 (Policy Statement). Prior to the 1994 amendment, we held that the sentencing ranges set out in U.S.S.G. Section(s) 7B1.4 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. Section(s) 7B1.4 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.
Under U.S.S.G. Section(s) 7B1.4, 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. Section(s) 7B1.4 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. Section(s) 7B1.4 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. Section(s) 3553(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. Section(s) 3553(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. Section(s) 3553(a)(4). And, Schwegel maintains, the ranges set out in U.S.S.G. Section(s) 7B1.4 are "referred to" in 18 U.S.C. Section(s) 3553(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 . . .
(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 ...