In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1304

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

LAWRENCE TAYLOR,

Defendant-Appellant.

Appeal from the United States District Court 

for the Northern District of Indiana, South Bend Division.

Nos. 07-CR-184 & 08-CR-100—Robert L. Miller, Jr., Judge.

SUBMITTED SEPTEMBER 23, 2010—DECIDED DECEMBER 21, 2010

Before CUDAHY, FLAUM, and WOOD, Circuit Judges.

CUDAHY, Circuit Judge. 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.
2 No. 10-1304

I. Facts and Procedural History

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.

The 2008 robbery resulted in potential terms of imprisonment with respect to two criminal cases: Case number

07-CR-184, concerning Taylor’s supervised release

arising from the 2002 bank robbery conviction, and case

number 08-CR-100, in which the Government charged

Taylor with the 2008 bank robbery.

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. Taylor did not

object to this aspect of the probation officer’s report.

The district court held a sentencing hearing on February 1, 2010. By this time, Taylor and the Government
No. 10-1304 3

had stipulated to a 12-month sentence for violating the

terms of his supervised release. Therefore, argument at

the sentencing hearing centered around the appropriate

sentence for Taylor’s bank robbery conviction, which

was to be much lengthier. After discussing the factors

relevant to sentencing pursuant to 18 U.S.C. § 3553(a), the

district court determined to impose a 168-month sentence for the 2008 robbery. Then, 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.

(Emphasis added.) Taylor did not object to this statement, nor did he ask for concurrent sentences. The district

court imposed consecutive sentences for Taylor’s bank

robbery conviction and his supervised release violation.

Taylor noted a timely but defective appeal from

his sentences. In particular, Taylor’s notice of appeal

indicated only the case number for the bank robbery

case, but not the number pertaining to his supervised

release case. The notice of appeal further indicated that

the appeal was from a “judgment in a criminal case

entered in this action on February 1, 2010.” Taylor’s

argument before this court is directed exclusively to

the consecutive sequencing of his sentence.

II. Applicable Law

Preliminarily to sentencing questions, this case presents

an issue of appellate jurisdiction, which this court is
4 No. 10-1304

obliged to consider sua sponte, see Janky v. Lake Cnty.

Convention & Visitors Bureau, 576 F.3d 356, 359 (7th Cir.

2009), even where neither party argues jurisdiction is

lacking, see Int’l Union of Operating Eng’rs, Local 150 v.

Ward, 563 F.3d 276, 282 (7th Cir. 2009). Specifically,

because Taylor failed to include the case number for his

supervised release case when he filed his notice of

appeal, his appeal was technically noncompliant with

Fed. R. App. P. 3(c), which provides:

(1) The notice of appeal must:

(A) specify the party or parties taking the

appeal . . .; [and]

(B) designate the judgment, order, or part

thereof being appealed[.]

Compliance with Fed. R. App. P. 3(c) is jurisdictional. See

Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct. 678, 116 L. Ed.

2d 678 (1992); AlliedSignal, Inc. v. B.F. Goodrich Co., 183

F.3d 568, 571 (7th Cir. 1999).

Although Rule 3(c) runs to the jurisdiction of this

court, the Supreme Court has explained that it is “liberally

construed.” Smith, 502 U.S. at 248. This court has

described the appropriate inquiry to be “whether sufficient notice was given to apprise the other parties of

the issues challenged.” United States v. Segal, 432 F.3d 767,

772 (7th Cir. 2005). In addition, we have stated that “an

error in designating the judgment will not result in a

loss of appeal if the intent to appeal from the contested

judgment may be inferred from the notice and if the

appellee has not been misled by the defect.” United

States v. Dowell, 257 F.3d 694, 698 (7th Cir. 2001).
No. 10-1304 5

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.

(Emphasis added.) 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
6 No. 10-1304

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 category . . . . Although these policy statements are nonbinding, 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) (quoting United States

v. Hill, 48 F.3d 228, 231 (7th Cir. 1995)).

If a defendant fails to raise an objection at sentencing,

this court will review for plain error, asking whether

“(1) error occurred; (2) the error was plain; and (3) the

error affected the defendant’s substantial rights.” United

States v. Pitre, 504 F.3d 657, 661 (7th Cir. 2007). This

remains true when the error alleged is that the sentencing court did not appreciate the advisory nature of

the sentencing guidelines. See United States v. Wilson,
No. 10-1304 7

481 F.3d 475, 484 (7th Cir. 2007); United States v. Santiago,

428 F.3d 699, 705 (7th Cir. 2005).

III. Analysis

A. Appellate Jurisdiction

Taylor’s notice of appeal was sufficient to bring his

case within our jurisdiction. Taylor’s intent to appeal

from both components of his sentencing package may

fairly be inferred from his notice of appeal, despite the

fact that he only included one case number. Both sentences arose from the same set of facts, and Taylor was

sentenced in both cases at the same hearing. His notice

stated that he appealed from “the judgment in a

criminal case entered in this action on February 1, 2010,”

which could refer to either sentence. This falls comfortably within the realm of technical, non-misleading

noncompliance with the rules, with respect to which an

appeal should be allowed.

In addition, while we are cognizant that parties cannot

stipulate to jurisdiction, the position of the government

is relevant because our precedents dictate that we

consider whether the appellee has been misled. Here,

the Government has made no argument that it was

misled or otherwise prejudiced by Taylor’s failure to

specify both case numbers on his notice of appeal.

Instead, the Government recommends that this court

credit one of Taylor’s arguments and remand the case. In

view of the liberal construction of Fed. R. App. P. 3(c), the

minor nature of Taylor’s mistake, and the absence of any
8 No. 10-1304

See, e.g., Harvey, 232 F.3d at 588; Hill, 48 F.3d at 231. 1

argument that the Government has been misled, we

consider that the notice of appeal was sufficient.

B. Sentencing

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.

Next, we must determine the appropriate remedy for

this sentencing error. Although the supervised release

policy statements were advisory well before the sentencing guidelines themselves were made advisory in

United States v. Booker, 543 U.S. 220, 267, 125 S. Ct. 738, 160

L. Ed. 2d 621 (2005), the district court’s error here is 1

analogous to a case in which the district court failed to

appreciate the advisory nature of the sentencing guidelines. In cases of that kind and in which the defendant

did not raise the issue at sentencing, the remedy has

been a limited remand for the district court to determine whether it would have imposed the same sentence

knowing that the guidelines are not mandatory. See
No. 10-1304 9

Taylor points out that each of his sentences was made consec2

utive to the other, and that as a practical matter, it only takes

one consecutive sentence to make the package consecutive.

He is apparently concerned that if the district court revises

the consecutive nature of only the supervised release sentence, he will still be stuck with a consecutive sentence package.

On remand the district court should give full effect to our

decision by reconsidering the consecutive nature of both of

Taylor’s sentences.

United States v. Paladino, 401 F.3d 471, 484-85 (7th Cir.

2005); Santiago, 428 F.3d at 705-06. 

Taylor does not ask for more than this. His reply brief

states,

[T]he government requests that this court affirm the

individual sentences of 168 months for the robbery

and 12 months for the violation of supervised release.

However, in light of the error, the government also

suggests that the sentencing package be remanded

with instructions for the district court to reexamine

whether [they] should be concurrent, partially concurrent, or consecutive. Appellate counsel for

Mr. Taylor does not object to the government’s proposed solution to the problems presented in this

appeal.

Such a limited remand is within our authority under 28

U.S.C. § 2106, see United States v. Young, 66 F.3d 830, 835

(7th Cir. 1995), is consistent with our prior practice, see

United States v. Macari, 453 F.3d 926, 942 (7th Cir. 2006), and

is urged by the Government and accepted by Taylor.2

Taylor is entitled to have the district court exercise its
10 No. 10-1304

discretion as to consecutive or concurrent treatment,

but this does not detract from the “great weight” ordinarily accorded to supervised release policy statements.

We express no opinion as to the proper outcome.

We AFFIRM Taylor’s sentences but order a LIMITED

REMAND for proceedings consistent with this opinion.

12-21-10