In the

United States Court of Appeals

For the Seventh Circuit

No. 17-2307

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DERRICK D. BELL, also known as

ROCK,

Defendant-Appellant.

Appeal from the United States District Court for the 

Northern District of Illinois, Western Division.

No. 3:16-cr-50011-1 — Frederick J. Kapala, Judge.

ARGUED MARCH 29, 2018 — DECIDED APRIL 10, 2018

Before BAUER, FLAUM, and MANION, Circuit Judges.

BAUER, Circuit Judge. During the execution of a search

warrant on January 15, 2016, ATF agents found Derrick Bell in

possession of a .40 caliber pistol. Bell was charged with being

a felon in possession of a firearm on March 1, 2016, in violation
2 No. 17-2307

of 18 U.S.C. § 922(g)(1), and on February 6, 2017, he pleaded

guilty pursuant to a plea agreement. 

In the Presentence Investigation Report (PSR), the Probation Officer calculated Bell’s total offense level as 23, with a

criminal history category of VI, for a Sentencing Guideline

range of 92 to 115 months. The PSR stated that “the [G]uideline

range for a term of supervised release is 1 year to 3 years.” See

U.S.S.G. § 5D1.2(a)(2). The Probation Officer also filed a

separate sentencing recommendation, which provided a chart

breaking down the statutory and Guideline ranges for supervised release. Finally, the government filed a “Notice of

Agreement Regarding Supervised Release,” which stated that

the government recommended a term of supervised release

within the Guidelines range of one to three years. 

The district court sentenced Bell to 98 months’ imprisonment, to be followed by three years of supervised release. On

appeal, Bell raises three procedural challenges to his sentence.

Since we conclude that the district court did not commit any

errors, we affirm.

I. DISCUSSION

A. Failure to Calculate the Guidelines Range for Supervised Release

Bell first argues that the district court procedurally erred

when it failed to explicitly make a Guidelines calculation for

his term of supervised release on the record. We review

procedural errors at sentencing de novo. United States v. Gibbs,

578 F.3d 694, 695 (7th Cir. 2009). However, we have previously

reviewed a district court’s failure to calculate the supervised
No. 17-2307 3

release Guidelines range for plain error. United States v. Oliver,

873 F.3d 601, 610 (7th Cir. 2017). Even under de novo review, we

find no error. 

The Supreme Court has said that “a district court should

begin all sentencing proceedings by correctly calculating the

applicable Guidelines range.” Gall v. United States, 552 U.S. 38,

49 (2007). Failing to calculate the Guidelines range is a “significant procedural error.” Id. at 51. While the Guidelines have

separate calculations for a custodial sentence and supervised

release, they both form the overall sentence. See United States

v. Kappes, 782 F.3d 828, 837 (7th Cir. 2015) (“Any term of

supervised release is considered part of the overall sentence.”).

However, we have previously held that “‘an explicit

announcement of the [G]uidelines recommendation’ for

supervised release, although helpful for purposes of appellate

review, is not required.” Oliver, 873 F.3d at 610 (quoting United

States v. Anderson, 604 F.3d 997, 1004 (7th Cir. 2010). “Rather,

the critical inquiry is whether the district court was aware of

and understood the Guidelines recommendation for supervised release.” Id. In examining whether the district court

understood the Guidelines calculation for supervised release,

we examine whether the court imposed a within-Guidelines

sentence, and whether the court explicitly referenced the PSR

during the sentencing. See id. at 610–11; Anderson, 604 F.3d at

1004. 

In Gibbs, we remanded forresentencing because the district

court imposed a term of supervised release twice as long as the

Guidelines range, while only acknowledging the statutory

range. Gibbs, 578 F.3d at 695. Thus, we could not conclude “that
4 No. 17-2307

the district court correctly calculated the advisory Guideline

range.” Id. at 695–96. However, the district court here, like in

Oliver and Anderson, imposed a term of supervised release

within the Guidelines range. See Oliver, 873 F.3d at 606;

Anderson, 604 F.3d at 1000. The court also made numerous

references to the PSR, the Probation Officer’s sentencing

recommendation, and the separately filed “Notice of Agreement Regarding Supervised Release,” all of which contained

the Guidelines calculation for supervised release. Moreover,

we are confident the court was aware of the contents of these

documents because it explicitly adopted the Guidelines

calculation contained in the PSR forthe term of imprisonment,

as well as the agreed modifications to the PSR’s recommended

conditions of supervised release. Accordingly, the court did

not err in imposing a three-year term of supervised release

withoutmaking a specific Guidelines calculation on the record.

B. Consideration of DepartureProvisions intheSentencing Guidelines

Next, Bell argues that the district court procedurally erred

when it considered the Guidelines’ departure provisions as

“controlling authority” during its 18 U.S.C. § 3553(a) analysis.

Our review of the record does not support this conclusion. 

When the Guidelines were mandatory, a district court

could impose a sentence outside the Guidelines range only

through the departure provisions. United States v. Brown, 732

F.3d 781, 786 (7th Cir. 2013). After the Guidelines became

advisory in United States v. Booker, 543 U.S. 220 (2005), the

departure provisions were rendered obsolete. United States v.

Lucas, 670 F.3d 784, 791 (7th Cir. 2012). However, we have
No. 17-2307 5

stressed that “district courts can still take guidance from the

departure provisions ... and apply them by way of analogy

when assessing the § 3553(a) factors.” Id. Accordingly, we have

never held that the departure provisions “are irrelevant to the

sentencing process.” United States v. Pankow, 884 F.3d 785, 794

(7th Cir. 2018). In fact, § 3553(a)(5) contemplates that a district

court will consider “anypertinent policy statements” contained

in the Guidelines. 

During the district court’s § 3553(a) analysis of Bell’s

arguments in favor of a below-Guidelines sentence, the court

correctly relied on our precedent regarding the departure

provisions and policy statements.The court acknowledgedthat

while the formal departure analysis is obsolete, the departure

provisions could be used as “guidance” and applied “by way

of analogy.” As the court analyzed each of Bell’s mitigation

arguments in the course of its § 3553(a) analysis, it referenced,

“by way of analogy,” a particular policy statement regarding

specific offender characteristics. See, e.g., U.S.S.G. § 5H1.3

(mental and emotional conditions); § 5H1.6 (family ties and

responsibilities); § 5H1.12 (lack of guidance as a youth and

similar circumstances). The court did not treat the policy

statements as controlling authority; rather, it appropriately

considered them as part of the entire § 3553(a) analysis in

finding that a below-Guidelines sentence was not warranted.

C. Consideration of Bell’s History and Characteristics

Finally, Bell argues that the district court did not consider

his history and characteristics in their totality during the

§ 3553(a) analysis. Once again, our review of the record leads

us to conclude otherwise.
6 No. 17-2307

The district court began its § 3553(a) analysis by noting

Bell’s arguments in mitigation: his difficult upbringing; his

supportive family and their circumstances; his history of

depression, a learning disability, and substance abuse; and his

remorse. The court also discussed arguments in aggravation:

Bell’s lengthy criminalhistory;his failure to comply with courtordered supervision; and his possession of a loaded gun. Each

of Bell’s arguments in mitigation were then dealt with thoroughly, in turn, with the court noting countervailing arguments in aggravation. The court concluded that “in sum,” none

of the arguments in mitigation warranted a below-Guidelines

sentence, although it would “giveduemitigating consideration

to the points raised by the defense.” Clearly, the court considered Bell’s arguments in mitigation as a whole—it simply was

not persuaded they justified a below-Guidelines sentence. 

II. CONCLUSION

For the foregoing reasons, the sentence is AFFIRMED.