United States v. John William Forrester

ORDER

The opinion filed January 13, 1994 is withdrawn and the opinion and separate concurrence filed concurrently herewith are filed in its stead.

OPINION

We consider the following question in this appeal: To what extent is a district court obliged to consider the policy statements of Chapter 7 of the United States Sentencing Guidelines in imposing a sentence when it revokes a defendant’s probation?

FACTS AND PROCEEDINGS

The appellant, John William Forrester, is a gambling addict and recovering alcoholic. In May 1991, he and his wife of one month moved to Las Vegas to seek a fresh start. A few weeks later, Forrester gambled and lost $13,000 that belonged to his wife. This was virtually all the money the couple had. Desperate to recover at least some of the money, Forrester, who was unarmed, robbed a bank.

Although the police had no suspects, a remorseful Forrester turned himself in and confessed to the crime. He pleaded guilty to bank robbery. He was 42 years old and had no history of prior criminal conduct.

At his sentencing hearing, the district court took pity on him. Instead of sentencing him to prison for between 33 and 41 months, as prescribed by the applicable…

concurring:

I agree with the majority that U.S.S.G. Chapter 7 policy statements are not binding on the sentencing court, but must be considered prior to sentencing. See United States v. Baclaan, 948 F.2d 628, 631 (9th Cir.1991) (per curiam). I also agree that the district court adequately considered the policy statements before sentencing Forrester. Accordingly, I concur.

I write separately only to express my disagreement with the majority’s statement that Chapter 7 apparently conflicts with the requirements of 18 U.S.C. § 3565 (a)(2). I believe that any apparent conflict is resolved by the policy statement that provides:

U.S.S.G. § 7B1.4(b)(2).

The majority’s holding that the policy statements are in apparent conflict with the statute rests on the difference between the sentence suggested by Chapter 7’s “applicable range” (3 to 9 months) and the sentence “available under subehapter A at the time of the initial sentencing” (33 to 41 months). The very existence of such a conflict leads to the conclusion that this is a case where “the minimum term of imprisonment required by statute ... is greater than the maximum of the applicable range,” and thus that the appropriate sentence…

19 F.3d 482 62 USLW 2639 UNITED STATES of America, Plaintiff-Appellee, v. John William FORRESTER, Defendant-Appellant. No. 93-10137. United States Court of Appeals, Ninth Circuit. Submitted Dec. 16, 1993 * . Opinion Jan. 13, 1994. Opinion Withdrawn March 25, 1994. Decided March 25, 1994. Franny A. Forsman, Asst. Federal Public Defender, Las Vegas, NV, for defendant-appellant. Will B. Mattly, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appellee. Appeal from the United States District Court for the District of Nevada. Before: SKOPIL, THOMPSON and RYMER, Circuit Judges. ORDER The opinion filed January 13, 1994 is withdrawn and the opinion and separate concurrence filed concurrently herewith are filed in its stead. OPINION DAVID R. THOMPSON, Circuit Judge: 1 We consider the following question in this appeal: To what extent is a district court obliged to consider the policy statements of Chapter 7 of the United States Sentencing Guidelines in imposing a sentence when it revokes a defendant's probation? FACTS AND PROCEEDINGS 2 The appellant, John William Forrester, is a gambling addict and recovering alcoholic. In May 1991, he and his wife of one month moved to Las Vegas to seek a…