*1 It be true that issue. the off- dwelling likely season a seasonal is less to be
occupied permanent than a residence. This
distinction, however, is of no moment. Un burglary dwelling
der 4B1.2 per se a designation
crime of violence. This obviates need for district court to consider the occupancy
likelihood of at the time of the
burglary. Raynor, United States v. (4th
191, Cir.1991) (burglary of unoc house);
cupied Brunson, United States v. (8th Cir.1990) curiam) (per
(burglary unoccupied dwellings), cert. de
nied, S.Ct.
L.Ed.2d 1093 “[F]or of de
termining career offender status under the
Guidelines, thing there is no such as a ... burglary Telesco, dwelling.”
non-violent
For the judgments reasons set
conviction and the sentences are affirmed. America, Appellee,
UNITED STATES
Cynthia ANDERSON, Yvette
Defendant-Appellant.
No. Docket 93-1097.
United States Appeals, Court of
Second Circuit.
Argued Nov.
Decided Feb. Laney,
Robert C.E. Westport, (Stanley CT Atwood, Sherwood, P. Garlick, Cowell, Divi- Atwood, ney counsel), & for defendant- appellant.
Joseph Martini, W. Atty., Asst. U.S. (Albert Bridgeport, Dabrowski, CT S. Atty., IV, D’Agosto Nicholas A. Law Student Intern, counsel), appellee. OAKES, KEARSE, Before: ALTIMARI, Judges. Circuit *2 think, OAKES, Judge: my judgment, I in sub- intensive Senior Circuit psychological stance abuse and I.BACKGROUND and, in a structured environment there- 4, 1991, Cynthia Anderson February On fore, going depart upward I’m from the use guilty to one count of fraudulent pleaded policy pe- statement recommendation to a in violation of 18 U.S.C. a credit card riod of incarceration of 17 months. I do it 1029(a)(2) (1988). just for the reasons I’ve stated. And for 1,000 you drug to enter the hour intensive for the District Court The United States program Lexington, Kentucky Connecticut, FCI Gilroy Daly, T.F. District hope you’ll accepted. where I be Judge, Anderson to a six-month sentenced a three- term of followed timely appeal Anderson filed a notice of on In addi- year term of release.1 February 1993. conditions of tion to the standard II. DISCUSSION Daly following Judge imposed the whether, appeal presents question This conditions: Sentencing under the Reform Act of a must “not commit another 1. Anderson a defendant’s need federal, state, or local crime and shall not care, including drug treatment/reha- substance;” illegally possess a controlled programs, bilitation possess firearm 2. must “not Anderson required of time the offender shall be device;” and or destructive prison following the revocation of “participate must a Sub- 3. Anderson supervised release. pa- Program, as an stance Abuse in/out tient, urinalysis, including at such times A. Judicial Discretion Federal Sen- such conditions as U.S. Proba- and under tencing tion directs.” Act, history Sentencing of the Reform completed Anderson her Commission, Sentencing and the Sen- began her ment and has told often. Most Guidelines been August on See, e.g., recently, it has told well. been 20, 1992, probation Anderson’s On October Koh, Kate and Steve The Politics Stith petition probation revoca- officer filed History Sentencing Legislative Reform: 26,1993, January Judge Daly found tion. On Guidelines, Sentencing For- 28 Wake special that Anderson had violated the three (1993). Through the Sentenc- est L.Rev. of her release. For conditions Act, Congress sought respond ing Reform violations, Judge Daly determined disparity in sentence to calls for reduction Sentencing the relevant caused, judicial allegedly, too much discre- sentencing range of suggested a See, Frankel, e.g., tion. Marvin Criminal noted, however, Judge Daly 6-12 months. (1973); Law without Order Jo- Sentences: statutory maximum for such viola- Howard, seph “Racial Discrimination C. Daly Judge then sen- tions was months. (October, Sentencing,” 59 Judicature prison, Anderson to 17 months’ tenced 1975). however, many recognized, As have stating: progeny Sentencing Reform Act and its goal completely realized the of sen- my you’ve no effort have not
In view made little or Notwithstanding six editions adjust equality. no tence supervision. You’ve taken Guidelines, sen- regarding your obligations to of the Federal responsibility vexing problem. disparity or to the tence remains probation office of fact, many argue that the Guidelines have In Superior Court. You have been Stamford officials, dif- disparity, particularly across ac- increased uncooperative with the See, information, groups. e.g., Remarks of racial cording my as well as with ferent Cabranes, Judge, recently A. Chief José [as] the U.S. Marshal Service for the District of Con- today. District Court plane trip up here You need States on the special mandatory $50.00 Judge Daly imposed assessment. also neeticut, “Reforming the Federal individual offender and the circumstances of Appellate particular constitutionally Guidelines: Review Discretion- offense as a Decisions,” ary Sentencing University indispensable part process inflicting death”) (citation Law, 25, 1993, penalty omitted); Puerto Rico School of Oct. *3 (Nov. Freed, 8, supra; 101 reprinted in at 15 Yale L.J. at 1753-54. Conn.L.Trib. Freed, 1993); Sentencing Daniel J. Federal B. Length Discretion over the Form and Unacceptable in the Wake Guidelines: of of Sentences Sentencers, Limits on the Discretion 101 of (1992).2 Yale L.J. 1681 This case calls for us to discern from the Sentencing Reform Act of 1984 and the re- Sentencing While the Commission has at- sulting ways Guidelines some of the in which tempted judicial to cabin discretion within judicial discretion has been fettered and the procedural limits, narrow substantive ways Importantly in which it has not. yet completely judicial has not eradicated case, provided the Guidelines at the time system. Although discretion from our some appellant’s of sentencing, they initial do appellate courts have a difficult time under- now, judicial for some discretion when sen- standing judicial that the exercise of discre- tencing relatively first offenders with low necessary important tion is a role in the very offense levels. For low offense levels justice system, administration of our criminal (one six), through “may the court elect to Freed, 1728, supra See it is clear to oth- (with sentence an probation offender to or See, Rivera, e.g., ers. United States v. 994 conditions).” without confinement United 942, (1st Cir.1993) F.2d 950-951 (Breyer, Commission, Sentencing Guidelines C.J.) (advocating departures review of from Manual, 1, (Nov.1990).3 A, Ch. Pt. at 1.7 guidelines under a standard that affords (seven slightly higher For offense levels of, respect “full awareness for” a district ten), through may a court still elect to sen- “special competence” court’s in determining probation tence an offender to im- but must given whether “the circumstances are pose certain confinement conditions. Id. At unusual, ordinary usual or ordinary, or not (eleven just higher twelve), offense levels extent”). and to what The fact that impose time, a court must some but Sentencing completely Reform Act has not may impose period “supervised of release.” judicial system, removed discretion from our Id. For first-time offenders with low offense course, best; although judicial is for the levels, therefore, permit the Guidelines a de- undoubtedly may discretion result in some judicial gree of discretion in choosing the sentencing disparities, it is also that which appropriate punishment. form our enables courts to fashion individualized just sentences essential to administration of Once a court has particular chosen a form the criminal law. punishment, Woodson v. North Car- Sentencing Reform Act Cf. olina, 280, 304, 2978, 2991, 96 S.Ct. impose and the Guidelines some limitations (1976) (“While the prevailing may on the factors a court consider in deter- practice individualizing mining deter- of the sentence. These generally simply minations enlight- reflects limitations are most severe when the court ened rather constitutional im- impose imprisonment. chooses a term of perative, capital we believe that in cases Specifically, under 18 U.S.C. respect
fundamental humanity underlying and 28 U.S.C. a court Eighth requires Amendment “imprision consider- as a promoting [] means of ation of the character and record of the serving rehabilitation” or medical needs. See goes saying many judges Guidelines, It almost without Impression Sentencing the Federal have been unable to reconcile themselves (1992). with 66 So.Cal.L.Rev. 357 See, Sentencing e.g., Guidelines. 956, Harrington, States v. aspect 3. This Guidelines has (D.C.Cir.1991) (Edwards, J., concurring); "Con- unchanged. remained See United States Sen- ference on the Federal Guidelines: Commission, Manual, Ch. Summary Proceedings,” 101 Yale LJ. A, (Nov.1993). Pt. at 7 (1992) (statement of The Hon. Nathaniel R. Jones); Weinstein, Judge's Jack B. A Trial Second other correctional treat- States, v. United Mistretta ment; L.Ed.2d 714 994(k). previ- this court has As impose a term authority to A court’s observed, ously Congress enacted 28 U.S.C. by 18 U.S.C. governed imprisonment 994(k): (a) pro- of Section § 3582. Subsection up vides: locked that no was to be sure defendant it was put place him in a where in order to to im- court, determining whether rehabilitation would occur. In- hoped that and, if a imprisonment, pose a term justified by would have to be carceration imposed, in is to be term purposes as penological traditional such term, shall length of the determining the *4 deterrence, specific incapacitation, general forth in section set the factors consider deterrence, and retribution. 3553(a) applica- they are that to the extent imprisonment ble, that recognizing (2d Maier, 975 F.2d v. promoting correc- means of appropriate an Cir.1992). rehabilitation., tion and to Medical Care C. Discretion Consider 3582(a) 3582(a). Thus, § Section 18 U.S.C. Impos- in Treatment and Correctional at set forth Sec- to the factors courts refers Imprison- ing a other than Sentence 3553(a): tion ment sentence suffi- impose a court shall The chooses to sentence a district court Where necessary, to cient, greater than but not punishment other defendant to form para-' forth in purposes set comply with the judicial limitations on imprisonment, the (2) court, in The of this subsection. graph When a district are less severe. discretion to be sentence determining particular to a an offender has chosen to sentence court shall consider— imposed, release, example, period factors set forth 3553(a), including § correctional. 18 U.S.C. at imposed— for the sentence the need and the medical of the sentence Maier, 975 F.2d See of the offender.
needs
“Congress expressed
(D)
(stating
with
defendant
provide
to
objective
an
hostility
rehabilitation as
train-
vocational
no
needed educational or
”).
super-
other correctional
Because
ing,
or
imprison-
is not
sentence
manner.
effective
vised
in the most
impris-
ment,
of.
limitations
sentences
on
3553(a) (1988). Thus, although
18 U.S.C.
3582(a)
contained
onment
to take “medical
permit
factors
courts
Id.;
apply. See
do not
into con-
treatment”
care” and “correctional
Harris,
United States
particular
sen-
sideration
Maier).
Cir.1993)
(11th
(following
ex-
impose, the
clause
tence
recognize
shall
provides that courts
plicitly
Care
Medical
D. Discretion to Consider
appropriate
is not
“that
in Revok-
Treatment
and Correctional
correction
rehabili-
promoting
means
Requiring
Release and
ing Supervised
3582(a) (emphasis
add-
tation.” 18 U.S.C.
,an
in Prison
Time
Offender
Serve
ed).
reinforced
limitation is further
This
Sentencing Com-
statutory directive to the
appeal is what limita-
question
mandating that:
mission
apply to a court in
judicial
on
discretion
tions
an of-
length of time that
determining the
shall
insure
Commission
prison
required to serve
will be
inappropriateness of
fender
guidelines reflect
super-
a condition
following a violation of
imposing a
to a
governing revoca-
The statute
rehabilitating the
vised
purpose of
for the
ment
is 18
supervised release
of a term
with
tion
providing
defendant
or
defendant
3583(e).
provides:
That section
training, educational
vocational
needed
offender.,
Modification
or Revocation
Conditions
bilitative needs of the
Subsection
(e)
a term of
provides
[of
release after im-
of Section 3583
for the revoca-
release,
prisonment].
may,
after consid-
tion of a term of
gives
—The
ering the factors set forth in
authority
[Section district courts
require
an offend-
3553(a)(2)(D)
prison following
]
er to serve time in
revoca-
—'
Bermudez,
probation.
tion of
See
(e)
(c),
at 14. Like subsection
subsection
release,
revoke a term of
expressly directs the court to consider “the
require
person
3553(a)(1),
factors
forth in section
all or
of the term of
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), and
lease without
previously
credit
time
(a)(6).”
3583(e).
Like subsec-
postrelease
served on
supervision,
if it
(e)
(c),
tion
subsection
express
contains no
preponderance
finds
of the evidence
reference to 18 U.S.C.
3582 or to 28 U.S.C.
person
violated a condition of su-
§ 994.
pervised
pursuant
provi-
sions of the
Rules
Federal
of Criminal
explicitly
Far from
contemplating the
Procedure that are
probation
applicability
of 18 U.S.C. 3582 or 28 U.S.C.
*5
provisions
revocation and to
applica-
the
§
§
18
appears
U.S.C.
to contem
ble
by
statements issued
the Sen-
plate that the
apply
limitations will not
Commission,
tencing
except
person
that a
that such factors as the medical and correc
whose term
para-
is revoked under this
tional
may
needs of the defendant
be consid
graph may
required
not be
to serve more
by
ered
a
Upon
district court.
revocation a
years
prison
than 3
in
if the offense for
may “require
district court
person
the
person
which the
was convicted
awas
prison
serve in
all or
of the term of
felony,
B
Class
years
more than 2
in
supervised release without credit for time
prison if the
was a
D
offense
Class C or
previously
postrelease supervi
served on
felony....
3583(e)(3). Thus,
§
sion.” 18 U.S.C.
the
3583(e) (1988
§
Supp.1990).
U.S.C.A.
&
contemplates
statute
that a district court
This section contains ho reference to 18 may require
person
prison
serve time in
§
Accordingly,
U.S.C.
the Govern-
equal
length
to the
supervised
of the term of
the,
argués,
may
ment
consider
fac-
release.
In determining
length
peri
the
tors contained in 18 U.S.C.
includ-
release,
supervised
recalled,
od of
be
will
ing
puiposes
the correctional
and medical
may
district court
consider such factors and
requiring
needs in
an offender to serve a
the medical and correctional needs of the
period
in
regard
time
without
Maier,
offender.
This conclusion stat- prison following that courts will avoid on of construction revocation re- provisions interpretations that render utory lease. See, e.g., National R.R. Pas- superfluous. —Corp., Maine senger Corp. v. Boston and Applicable Sentencing E. Commission 1402, 118 -, -, 112 S.Ct. U.S. Policy Statements (1992); Bank Nat’l L.Ed.2d 52 Connecticut Although we have determined that 28 — Germain, -,-, authority U.S.C. does not limit the (1992). If we of a court to consider the medical and correc- by adopt interpretation advanced
were to offender, Sentencing tional needs of an however, Anderson, portions those of 18 inapplicable Guidelines are not to this case. 3583(e) refer to 18 U.S.C. 3583(e) contrary, On the 3553(a)(2)(D), superflu- rendered would be quires the court to consider factors set forth Further, interpretation does not ous. our 3553(a), including §in “the kinds of sentence 994(k) superfluous. Sec- render 28 U.S.C. sentencing range ... and the as set forth 994(k), above, as discussed directs tion guidelines ... on that are effect to take care that the Commission “any date the defendant is sentenced” and inappropriateness “reflect the pertinent policy statement issued the Sen- imposing a sentence to a term of Commission that is effect on rehabilitating purpose -the ment for the the date the defendant is sentenced.” 18 providing the defendant with defendant or 3583(e) 3553(a)(4), Section also training, educational or vocational needed “applicable policy indicates treat- or other correctional issued Commission” are *6 force This directive retains its full ment.” probation. relevant to the revocation of 18 imposing a sentence to a when a court is Bermudez, 3583(e); § 974 U.S.C. see also imprisonment. a court re- Where (district F.2d at 14 courts “should take prison quires an offender to serve time policy the statements into account when sen- release, supervised upon the revocation of for a violation however, apply. In- directive does not the lease”). deed, that render 18 U.S.C. the same reasons inapplicable, § render 3582 Although 28 Con- under U.S.C. requiring inapplicable to a court charged gress has the Commis- following prison time in the offender to serve guidelines promulgating task of sion with the (1) 18 revocation of release: governing sentencing for violations of condi- any explicitly to U.S.C. 3583 does not refer release, the tions of Commission (2) limitation; 18 3583 does such U.S.C. any guidelines. yet promulgated not such has explicitly including the of- refer factors Instead, only promulgat- the has Commission (3) needs; fender’s medical and correctional statements,” Chapter “policy forth at 7 ed language similar 18 3583 avoids is no Manual. While there of the Guidelines “imposition the sentence question policy statements are these (4) 994(k); language 18 ment” of 28 U.S.C. matter, relevant, raise, preliminary we as a contemplates requir- expressly § 3583 policy question these statements the whether equal ing serve time in an offender to binding advisory. are period to his or her may consider the medical and and a court has held that Supreme Court of an offender in deter- correctional needs prohibits a policy ... a statement “[w]here mining the the action, specified taking a district court from guide authoritative the statement is an guideline.” meaning the plain language of 18 U.S.C. From the States, -, 3583(e), therefore, Williams v. United appears that Con- 1112, 1119, -, 112 S.Ct. may con- gress intended that a district court at issue policy needs of sider the medical correctional statements case, however, guideline. accompany not do how much time an offender 284
Hence,
Chapter
policy
by
policy
can- was not bound
statements.
Accordingly,
guide[s]
the district court need
not be construed as “authoritative
explicit,
findings required
“make the
detailed
meaning
applicable guideline”—
of an
departs upward
when it
binding
from a
guideline
simply
there
is no
to which the
Jones,
guideline.” United States v.
973 F.2d
guides.
statements could
United
serve
Cf.
(8th
605,
also,
Cir.1992);
607-608
see
Johnson,
(2d
964 F.2d
Blackston,
(3d
States v.
940 F.2d
Cir.1992) (affirming departure
893-94
for extraordi-
—
Cir.),
denied,
U.S.-,
cert.
nary family
pursuant
circumstances
611, 116
(1991). Instead,
L.Ed.2d
we will
accompanying poli-
U.S.S.G. 5H1.6 and its
affirm
provided
the district court’s sentence
cy
stating
statement and
that “courts must
(1)
district
applica
court considered the
distinguish
between
Guide-
statements;
policy
ble
the sentence is
policy
accompa-
lines and the
statements that
maximum;
statutory
within the
them,
ny
employ policy
statements as
sentence
reasonable. See United States v.
to,
for,
interpretive guides
not substitutes
(10th
Lee,
Cir.1992);
themselves”). Furthermore,
Headrick, 963 F.2d
In
at 782.
this case it is
policy statements at issue in this ease are
clear from the record that the district court
“prefaced by
special
making
discussion
applicable policy
considered the
statements.
manifest
their
tentative nature.” United
It
is also clear that
the seventeen-month
O’Neil,
(1st
States v.
302 n. 11
statutory
sentence was within the
maximum.7
Cir.1993) (citing
A,
U.S.S.G. Ch.
Pt.
intro.
Finally, the district court’s sentence was rea
comment).5 Accordingly,
policy
we find the
by
sonable. The factors considered
the court
distinguish-
statement at issue in this case
were consistent with the factors set forth at
from
able
statement
issue
3553(a). Further,
hold, therefore,
Chapter
Williams.6 We
beyond
range suggested
five months
policy
advisory,
statements are
rather than
applicable policy
statements was reason
binding.
doing,
In so
position
we affirm the
light
able in
findings
of the district court’s
Williams,
articulated
this court before
see
adjust
supervision,
Anderson failed to
Bermudez,
join
974 F.2d at
several
obligations
failed to fulfill her
under her sen
other circuits that have declined to extend
probation,
tence of
and needed “intensive
Chapter
Williams to
statements.
*7
psychological
substance abuse and
See,
O’Neil,
e.g.,
11;
11 F.3d
302 n.
in a structured enviroment.” The district
Hooker,
v.
United States
to consider the
statements set forth at
KEARSE,
Judge, dissenting:
Circuit
Chapter
sentencing
7 in
upon
a defendant
probation,
the revocation of
respectfully
the district court
I
dissent.
"
'[wjhere
distinguished
5. Williams
also be
policy
from this
served that
... a
statement
by
case
prohibits
virtue of the fact that Williams involved
taking specified
a district court from
a
mis-interpretation
action,
policy
the
of a
statement and
guide
the statement is an authoritative
to
"
the
expressly rejected
consideration of a
meaning
applicable guideline,'
factor
the
of the
Stin
by
son,
policy
at-,
the
statement. See
States v.
(quoting
-U.S.
6. The
Court's recent extension of
-
Stinson,
explain
applied."
how it is to be
-
States,
Williams in Stinson v. United
U.S.
at-,
(quoting
3553(a) they applicable, that are to the extent of the court has included term sentence not an imprisonment recognizing that is designed pro- that is promoting means correction appropriate (b) of or medical vide rehabilitation and rehabilitation.” imposing for violation condition added). proposition The (emphasis supervised release the court has ordered of pur- imprisonment for to order court is not length super- imprisonment for the of the reinforced one poses of rehabilitation term, im- the overall effect is vised-release statutory governing the Unit- provisions the that includes a prisonment for term creation Commission’s ed States originally designed provide rehabilitation guidelines, in which of federal is, however, That effect or medical care. provided that Congress incidental, election to order and the court’s that the shall insure original imprisonment [t]he Commission for the inappropriateness viewed, reflect the guidelines supervised-release properly term is impris- imposing a sentence to a term the assuming no from the court to indication rehabilitating purpose contrary, onment for violation of punishment as for providing or not the conditions defendant defendant educational vocational with needed purposes for the motivat- care, or other correction- medical training, original conditions ed al prohibit- treatment. not That incidental effect is lease. view, is, my prohibited ed. What added). 994(k) (1988) (emphasis term statutory imposition is the scheme Maier, F.2d also United States See originally imprisonment, whether or there- 994(k)[ (2d Cir.1992) (“§ for ] stands violation, upon subsequent for after some proposition rehabilitation is the ... or medical care. purpose of rehabilitation ground imprisonment” appropriate original)). (emphasis in majority points out that 3553(a)(2)(D) “in provides that majority agrees provi- above imposed,” particular sentence be order- prohibit the district court sions from provide the the need “to court shall consider ing imprisonment rehabilita- or other care[ ] defendant with *8 imposing original care tion or treatment,” argues that in- and correctional nothing provisions, in these sentence. I see fore- statutory framework as terpreting the these any provision, other that relaxes closing imprisonment imposing a the court constraints when portions superfluous the render would supervised violation of sentence for 3583(e) (“Modification of condi- view, ante, majority’s agree I do not with the “ release] supervised or revoca- [of tions ‘require phrase of the note that the use 3553(a)(2)(D). tion”) I dis- refer to prison’ 18 U.S.C. person [in to serve 3583(e) gives light agree in of the fact 3583(e) phrase ‘sentence rather than the ] imprisonment. than options other imprisonment’ [inter- term of person to a It states that suggests polating ]” considering fac- may, after [t]he ap- “Congress intended that the limitations 3553(a)(1), in section forth tors upon an initial sentence plicable (a)(4), (a)(5), (a)(2)(D), (a)(2)(B), (a)(2)(C), upon the revo- ment not be would (a)(6)— and release,” Ma- cation of a term (1) supervised re- ante, terminate a term Surely if Con- jority opinion, note 4. ...; explicit statu- lease to override its two gress meant (2) extend release
if maximum less authorized imposed, previously
term was
modify_the conditions of any prior expira- time
release at
tion or of su- termination ...;
pervised release
(3) revoke a term of require person
all or of the term of ...; or
(4) person order the to remain at his
place during nonworking of residence
hours ... as an alternative to incarcera-
tion. 3583(e). Thus, 3553(a)(2)(D)
plainly remains relevant to subsection 3583(e), perhaps to subsections i.e.,
(4), well, provisions that do not
provide imprisonment. We do not render superfluous by recognizing inapplicabili- its
ty to subsection sum,
In I conclude that the district court’s present of the defendant in the
case to for the stated reason think, my judgment,
that “You need I psychological
intensive substance abuse and environment,” a structured vio- express statutory provision
lated the 3582(a). Accordingly, I would vacate the imposition
sentence and remand for the
sentence that is based on consideration of
only permissible factors. America, Appellant
UNITED STATES
Patrick William SWINT.
No. 93-7316. Appeals, States Court of
Third Circuit.
Argued Dec.
Decided Jan.