UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JAMES W. SNYDER, Defendant-Appellant.

No. 09-3748.

Decided March 18, 2011.

WILLIAMS, Circuit Judge.

James W. Snyder was sentenced to eight years’ reimprisonment upon revocation of his supervised release.

When the district court imposed Snyder’s sentence, it did not acknowledge the advisory range recommended by the United States Sentencing Guidelines. Nor is it clear whether the court considered, as required by 18 U.S.C. § 3553(a)(6), whether the sentence would create unwarranted disparities among similarly situated defendants.

Because we cannot tell whether the court considered the advisory range and the § 3553(a) factors, we vacate Snyder’s sentence and remand for resentencing.

I. BACKGROUND

In October 1996, Snyder and another man took an eleven-year-old boy to Snyder’s house, where they showed the boy pornography and made him drink beer and smoke marijuana. Snyder and his companion then sodomized the boy, forced the boy to perform oral sex on them, and took pictures of themselves engaging in sex acts with the boy. A search of Snyder’s house revealed that Snyder had more than 1,000 child pornography pictures on his computer and that he traded pornography with friends online.

Snyder was charged with using a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct in violation of 18 U.S.C. § 2251(a) (Count 1); receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count 2); distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count 3); and possession of child pornography in violation of 18 U.S.C. § 2252(a)(3)(B) (Count 4).

After a jury trial, Snyder was convicted of all four counts and was sentenced to 168 months in prison, a six-year term[1] of supervised release, and a $15,000 fine.

Snyder began serving his term of supervised release on April 16, 2009. On June 17, 2009, at the request of Snyder’s probation officer, Snyder’s conditions of supervised release were modified to prohibit him from using a computer with access to the internet, to prohibit him from possessing pornography, and to require him to participate in sex-offender treatment.

Unfortunately, Snyder did not comply with the modified conditions. Although he went to sex-offender treatment, he showed such resistance that he was eventually discharged from the program due to non-compliance.

On September 29, 2009, Snyder’s probation officer filed a Special Report recommending that Snyder’s supervised release be revoked due to three violations: (1) failure to comply with sex-offender treatment; (2) using a computer to access the internet; and (3) viewing pornography.[2]

Snyder’s probation officer recommended nine months per each of the four original convictions, imposed consecutively. The government asked for what it believed to be the statutory maximum of two years per conviction to run consecutively.

According to the court, the conditions Snyder violated were central to the efforts to rehabilitate him and to protect children. Snyder had violated those conditions so soon after his release from prison and after the modification of the terms of his release that the court believed that attempting to supervise Snyder while on release was “a fool’s errand.”

During the hearing, the court made no mention of the advisory range recommended by the Guidelines. Snyder appeals his sentence.

II. ANALYSIS

As with an initial sentencing decision, when deciding whether to revoke a term of supervised release, the district court must begin its analysis with the recommended imprisonment range found in the Guidelines. United States v. Neal, 512 F.3d 427, 438 (7th Cir. 2008).

The court must also consider the factors enumerated in 18 U.S.C. § 3553(a): (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need to deter future crime, protect the public, and provide the defendant with necessary services such as vocational training and medical care; (4) the Sentencing Commission’s recommendations regarding the sentencing range; (5) the Sentencing Commission’s policy statements; and (6) the need to avoid unwarranted sentencing disparities. See United States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005).

While the court need not make factual findings as to each factor, the record should reveal that the factors were considered. Neal, 512 F.3d at 438.

Section 3583(e)(3) provides that a court may revoke a term of supervised release, “and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release . . . except that a defendant whose term is revoked . . . may not be required to serve . . . more than two years in prison if such offense is a class C or D felony.” § 3583(e)(3). In 1997, when Snyder was sentenced, all of his convictions were class C felonies.[3]

There are three grades of supervised release violations under the Guidelines. A Grade C violation encompasses conduct constituting an offense punishable by less than a year or a violation of any other condition of supervised release.[5] U.S.S.G. § 7B1.1(a)(3). There is no dispute that Snyder’s violations fall under the “violation of any other condition of supervised release” and are therefore Grade C violations.

Although the district court need not explain why a sentence differs from the Sentencing Commission’s recommendation as long as the sentence is appropriate under the § 3553(a) factors, the court must still “start by using the Guidelines to provide a benchmark that curtails unwarranted disparities.” United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir. 2009).

A departure from the Guidelines, especially a significant one, must be carefully explained. See Gall v. United States, 552 U.S. 38, 46 (2007).

The court here, however, made no reference to the advisory range at all.

Also, we cannot be sure that the court considered whether imposing what it believed to be the harshest possible sentence would lead to unwarranted disparities among similarly situated defendants. The court never discussed whether Snyder’s sentence would create unwarranted sentencing disparities among defendants. See United States v. Bartlett, 567 F.3d 901, 908-09 (7th Cir. 2009) at 907 (explaining that the kind of disparity with which § 3553(a)(6) is concerned is an unjustified difference across judges or districts).

“Whenever a court gives a sentence substantially different from the Guidelines’ range, it risks creating unwarranted sentencing disparities, in violation of 18 U.S.C. § 3553(a)(6), for most other [courts] will give sentences closer to the norm.” Kirkpatrick, 589 F.3d at 415. “[L]eaping close to the statutory maximum creates a risk of unwarranted disparity with how similar offenders fare elsewhere—not only because it may overpunish [a defendant], but because it leaves little room for the marginal deterrence of persons whose additional deeds are more serious . . . .” Id. (“If [the court] decides that an outside-Guidelines sentence is warranted, [it] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.”).

(“[A]voidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges. Since the District Judge correctly calculated and carefully reviewed the Guidelines range, he necessarily gave significant weight and consideration to the need to avoid unwarranted disparities.”). But there is nothing in the record to suggest that the court did either.

The government also argues that Snyder forfeited his contention that the district court erred because he did not “object” to the sentence imposed.

But we have repeatedly held that the rules do not require a defendant to complain about a judicial choice after it has been made so long as the defendant argued for a lower sentence before the court imposed the sentence. Bartlett, 567 F.3d at 910

III. CONCLUSION

We therefore VACATE Snyder’s sentence and REMAND for proceedings consistent with this opinion.

 

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