It was not all too long ago that the degree of judicial scrutiny we were to employ when considering § 7B1.4(a) sentencing issues remained an open question in this Circuit. See, e.g., United States v. McGee, 60 F.3d 1266 (7th Cir. 1995) (case of first impression). However, it is now well-settled that, because "the range set forth in the policy statement at § 7B1.4(a) is neither a guideline nor interpretive of a guideline," Id. at 1272 (citing 18 U.S.C. § 3742(a)(4)); see also United States v. Doss, 79 F.3d 76, 79 (7th Cir. 1996), we review a sentence imposed following revocation to ascertain whether it was "plainly unreasonable." Doss, 79 F.3d at 79.
As we have emphasized in several recent decisions, the imprisonment ranges set out in section 7B1.4(a)'s Revocation Table are advisory rather than mandatory, as they are included in a non-interpretive policy statement, rather than in a guideline. See United States v. Doss, 79 F.3d 76, 78 (7th Cir. 1996); United States v. Lee, 78 F.3d 1236, 1239 (7th Cir. 1996); United States v. McGee, 60 F.3d 1266, 1272 (7th Cir. 1995); United States v. Hill, 48 F.3d 228, 231 (7th Cir. 1995). In determining the sentence to be imposed upon the revocation of supervised release, the district court must consider the range designated in the Table, but the court is thereafter free to impose a sentence outside the designated range, subject to the maximum sentence allowable under 18 U.S.C. § 3583(e)(3).
Nonetheless, numerous post-Stinson courts have concluded that the Chapter Seven provisions are merely advisory rather than mandatory, subject to the statutory maximum terms of imprisonment ("caps") provided in 18 U.S.C. § 3583(e)(3). See, e.g., United States v. Pelensky, 129 F.3d 63, 69 (2d Cir. 1997); United States v. Doss, 79 F.3d 76, 78 (7th Cir. 1996); Hurst, 78 F.3d at 483-84 (collecting cases); United States v. Milano, 32 F.3d 1499, 1502-03 (11th Cir. 1994); United States v. Mathena, 23 F.3d 87, 93 (5th Cir. 1994). As this court explained in United States v. Hill, not all commentary interprets a guideline.
A sentence imposed when revoking a term of supervised release will only be reversed if it is "plainly unreasonable." United States v. Doss, 79 F.3d 76, 79 (7th Cir. 1996). Sandfrey's sentence was unquestionably reasonable.
Chapter 7, Part B of the Sentencing Guidelines, which contains the advisory revocation sentence table, is a policy statement and "not a guideline, binding on the sentencing judge." United States v. Doss, 79 F.3d 76, 78 (7th Cir. 1996). Smith argues the 24-month sentence was unreasonable because the district court failed to treat her mental health problems as a mitigating factor.
'" United States v. Salinas, 365 F.3d 582, 588 (7th Cir.2004) (citing United, States v. McClanahan, 136 F.3d 1146, 1149 (7th Cir.1998); United States v. Marvin, 135 F.3d 1129, 1136 (7th Cir.1998)). "To determine whether the sentence was plainly unreasonable, we [consider] . . . the standards set out in 18 U.S.C. § 3583." United States v. Harvey, 232 F.3d 585, 587 (7th Cir.2000) (citing United States v. Doss, 79 F.3d 76, 79 (7th Cir.1996)). The district court was also required to consider the policy statements set forth by the Sentencing Commission in U.S.S.G. Chapter Seven and the sentencing factors set forth in 18 U.S.C. § 3553(a).
Thus, the district court must at least consider the sentencing range recommended under section 7B1.4(a). United States v. Doss, 79 F.3d 76, 78 (7th Cir. 1996); Hill, 48 F.3d at 231. Nonetheless, the recommended range informs rather than cabins the exercise of the judge's discretion.
To determine whether the sentence was plainly unreasonable, we must assess whether the district judge complied with the standards set out in 18 U.S.C. § 3583. See United States v. Doss, 79 F.3d 76, 79 (7th Cir. 1996). The district court's interpretation of the Sentencing Guidelines is an issue of law; therefore our review is de novo.
While it is quite true that Application Note 3 states that "an upward departure may be warranted" under certain circumstances, the use of the term "upward departure" does not serve to convert the suggested sentence into a binding sentencing guideline if the Grade C violation is not associated with a high risk of new felonious conduct. See United States v. Doss, 79 F.3d 76, 78 (7th Cir. 1996) (holding that § 7B1.4(a) is not binding simply because the district court used the term "depart upward" in rejecting a joint recommendation by both counsel that the suggested range of 8 to 14 months be applied). Here, the district court considered the aggravating factor set forth in Application Note 3 in rejecting the suggested range set forth in § 7B1.4(a). It found that Tadeo's use of narcotics presented the risk that Tadeo would commit serious crimes because his prior criminal activity, including sexual offenses, occurred while he abused controlled substances.