USA v. Lawrence Taylor, 10-1304.  Appellant Lawrence Taylor appeals from his sentences for bank robbery and for violating the terms of his supervised release relating to an earlier bank robbery conviction.

Because the district court erred by failing to appreciate its discretion to impose the sentences either consecutively or concurrently, we remand for the court to reconsider that aspect of the sentencing package.

In 2002 Lawrence Taylor pleaded guilty to bank robbery charges and was sentenced to a term of incarceration by the U.S. District Court for the District of Minnesota. Sometime in 2007 he was placed on supervised release, but within less than a year, on August 7, 2008, he attempted to rob a bank in South Bend, Indiana. Taylor obtained money from the tellers, but the plan went awry and Taylor was arrested before he could flee the scene.

Taylor pleaded guilty to the bank robbery on May 7, 2009, and a single
sentencing hearing was set for both the bank robbery and the supervised release cases. Taylor's probation officer prepared a "Summary Report of Violations" in connection with Taylor's supervised release case, which suggested an 18- to 24-month sentence.

In addition, the Summary cited a policy statement within the United States Sentencing Guidelines, U.S.S.G. § 7B1.3(f), for the proposition
that any term of incarceration for the supervised release violation must be made consecutive to the bank robbery sentence. 

With respect to the supervised release sentence, the court stated, In addition to [the bank robbery sentence discussed immediately prior], there would be the twelve months that has to run consecutive, as I understand it, the twelve months on the supervised release violation.

II. Applicable Law 

Moving on to the merits, a sentencing court has discretion to make a sentence consecutive or concurrent. See 18 U.S.C. § 3584(a); United States v. Campbell, 617 F.3d 958, 961 (7th Cir. 2010). This includes situations where the sentence is imposed in connection with a revocation of supervised release. See United States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1256 (10th Cir. 2006). A sentencing court errs when it has discretion but fails to exercise that discretion. See United States v. Jackson, 546 F.3d 465, 472 (7th Cir. 2008).

As noted, the probation officer's Summary Report of Violations referred to a policy statement contained in the sentencing guidelines, U.S.S.G. § 7B1.3(f), which provides as follows:  Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release. 

Despite this facially mandatory language, our precedents are unambiguous that the policy statements on supervised release are not mandatory. See United States v. Harvey, 232 F.3d 585, 588 (7th Cir. 2000). Rather, we have explained the import of the supervised release policy statements as follows:  Rather than establishing guidelines governing the revocation of supervised release, the Sentencing Commission has opted to promulgate a series of policy statements, including a Revocation Table of recommended sentencing ranges tied
to the severity of a defendant's violations and criminal history cate-gory . . . . Although these policy statements are non-binding, they are to be given "great weight" by the sentencing judge.  United States v. Salinas, 365 F.3d 582, 588 (7th Cir. 2004). 

In sum, U.S.S.G. § 7B1.3(f) reflects the U.S. Sentencing Commission's policy favoring the consecutive sequencing of a sentence imposed upon revocation of supervised release and the sentence for the offense precipitating the revocation. See U.S.S.G. § 7B1.3(f), Application Note 4; United States v. Glasener, 981 F.2d 973, 975-76 (8th Cir. 1992).

The Commission's supervised release policy statements are generally entitled to "great weight." We have also emphasized, however, that while the policy statements "are an 'element in [the sentencing judge's] exercise of discretion,' they are not a substitute for that discretion." United States v. McClanahan, 136 F.3d 1146, 1149 (7th Cir. 1998).

We agree with Taylor and the Government that the district court erred by treating the policy statement recommendation in U.S.S.G. § 7B1.3(f) as mandating consecutive sentencing for Taylor's 2008 bank robbery case and his supervised release case.

As Taylor urges and the Government concedes, the sentencing court's reference to "the twelve months that has to run consecutive, as I understand it" shows without ambiguity that the sentencing court did not
appreciate its discretion to make Taylor's sentences either consecutive or
concurrent. 

We AFFIRM Taylor's sentences but order a LIMITED REMAND for proceedings consistent with this opinion. 

For the full opinions visit the 7th Circuit Court of Appeals Web Site

For more about Chicago Criminal Defense Attorney Michael J. Petro, visit www.mjpetro.com

 

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