FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 10, 2005

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 04-15632

Non-Argument Calendar

________________________

D.C. Docket No. 98-00427-CR-MHS-1-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee

versus

JANNICE FRANK,

Defendant-Appellant.

__________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(August 10, 2005)

Before CARNES, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

Jannice Frank appeals her sentence of 24 months’ imprisonment for
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violating the conditions of her supervised release. On appeal, Frank contends that

the district court erred and violated her due process rights when it imposed a 24-

month sentence in excess of the range established in section 7B1.4 of the

sentencing guidelines because the court did not consider the Chapter 7 policy

statements prior to imposing sentence. Frank notes that although the Chapter 7

guidelines are not binding, the district court must at least consider the Chapter 7

guidelines prior to imposing sentence after revocation of supervised release. 

Specifically, Frank maintains that court failed to consider the grade of the

violation alleged in the revocation petition, as well as U.S.S.G. § 7B1.4’s

sentencing range for violating supervised release, which, according to Frank’s

calculations, was 8 to 14 months. 

Additionally, on appeal, Frank asserts the district court imposed an

unreasonable sentence after revoking Frank’s supervised release because the court

failed to consider the Chapter 7 policy statements, and “her criminal history [did]

not establish her as being particularly deserving of harsh treatment.” 

I. Frank’s claim that the district court erred and violated Frank’s

due process rights by imposing a sentence above the presumptive

guideline range, without allegedly considering the Chapter 7

policy statements

Ordinarily, we review “the district court’s decision to exceed the Chapter 7

sentencing range for an abuse of discretion.” United States v. Hofierka, 83 F.3d
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357, 361 (11th Cir. 1996). However, when a defendant fails to state clearly the

grounds for an objection, her objection is waived on appeal and reviewed for plain

error. United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003); see also

United States v. Hayes, 40 F.3d 362, 364 (11th Cir. 1994) (noting that when due

process issues are not raised before the district court, this Court reviews due

process claims for plain error). Also, when a defendant raises an argument for the

first time on appeal, we review only for plain error. See United States v.

Aguillard, 217 F.3d 1319, 1320 (11th Cir. 2000). Plain error exists when: (1) an

error exists that, (2) is plain, (3) seriously affects a defendant’s substantial rights,

and (4) “seriously affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Acevedo, 285 F.3d 1010, 1012 (11th Cir. 2002). 

Here, we review Frank’s claim that the district court erred by failing to consider

the Chapter 7 policy statements before sentencing her under the plain error

standard because she failed to raise this issue at the revocation hearing. See Zinn,

321 F.3d at 1087. 

Upon finding that the defendant violated a condition of supervised release, a

court, after considering factors set forth in § 3553(a)(1), (a)(2)(B)-(D), (a)(4)-(7),

may revoke a term of supervised release. 18 U.S.C. § 3583(e). The § 3553(a)

factors include, in relevant part: “(1) the nature and circumstances of the offense
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and the history and characteristics of the defendant; (2) the need for the sentence

imposed . . . (C) to protect the public from further crimes of the defendant; . . .

(4) the kinds of sentence and the sentencing range established for . . . (B) in the

case of a violation of probation or supervised release, the applicable guidelines or

policy statements issued by the Sentencing Commission . . . ; and (5) any pertinent

policy statement issued by the Sentencing Commission. . .” 18 U.S.C. § 3553(a). 

The sentencing court “shall state in open court the reasons for its imposition of the

particular sentence, and, if the sentence . . . is not of the kind, or is outside the

range, described in subsection (a)(4), the specific reason for imposition of a

sentence different from that described.” 18 U.S.C. § 3553(c)(2).

Chapter 7 of the Sentencing Guidelines, which governs violations of

supervised release, contains policy statements. One of the policy statements,

U.S.S.G. § 7B1.4, provides recommended ranges of imprisonment applicable upon

revocation. Policy statements are merely advisory and thus, non-binding. United

States v. Cook, 291 F.3d 1297, 1301 (11th Cir. 2002). “Section 3553 requires a

court only to consider [them] in determining a defendant’s sentence” upon

revocation. Id. at 1302 (emphasis in original). It is enough if “there is some

indication the district court was aware of and considered [the guidelines.]” 

Aguillard, 217 F.3d at 1320. 
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In this case, a review of the transcript from the revocation hearing fails to

reveal that there was, at a minimum, some indication that the district court was

aware of and considered the sentencing guidelines. Although Frank advised the

district court that the court could sentence her to (a) 24 months’ imprisonment,

with no supervised release to follow, or (b) a shorter term, with further

supervision, there is nothing in the record to support the conclusion that the court

implicitly considered and rejected the Chapter 7guidelines. As such, the district

court erred by failing to consider the applicable Chapter 7 sentencing range. 

Cook, 291 F.3d 1297, 1302. 

 Nevertheless, assuming without deciding that Frank’s applicable guideline

range was 8-14 months’ imprisonment, the district court did not commit plain

error in imposing Frank’s sentence without considering the Chapter 7 range

because her substantial rights were not seriously affected. In imposing a sentence

for violating supervised release, a district court is not bound by the policy

statements of Chapter 7 and is not “restricted to the guideline range applicable at

the time of the initial sentencing hearing.” See Cook, 291 F.3d at 1300. Here, the

court’s decision to sentence Frank to 24 months’ imprisonment far exceeded the

presumptive Chapter 7 sentencing range of 8 to 14 months’ imprisonment, so it is

unlikely that the court would have applied the Chapter 7 sentencing range had it
 Frank was convicted of interstate transportation of stolen property, in violation of 18 1

U.S.C. § 2314, an offense punishable by imprisonment of not more than 10 years. 18 U.S.C. § 2314.

An offense is classified as a Class C felony if the maximum term of imprisonment authorized is less

than 25 years but 10 or more years. 18 § 3559(a)(3). The court may impose a term of imprisonment,

not to exceed 2 years if the offense that resulted in the supervised release was a Class C felony. 18

U.S.C. § 3583(e)(3). 

Because Frank’s rights were not substantially affected by the court’s failure to consider the 2

Chapter 7 sentencing range, Frank’s due process claims are without merit.

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explicitly considered it, especially given the district court’s conclusion that Frank

was “hopeless.” Additionally, Frank was sentenced within the statutory maximum

sentence of 24 months’ imprisonment for the revocation of supervised release

imposed for the violation of 18 U.S.C. § 2314. See 18 U.S.C. § 3583(e)(3).1

Therefore, because (a) it is unlikely that the district court would have applied the

Chapter 7 sentencing range, and (b) Frank was sentenced within the statutory

maximum sentence, we hold that Frank’s rights were not substantially affected by

the court’s failure to consider the Chapter 7 sentencing range. 

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II. Frank’s claim that her sentence is unreasonable

We review the district court’s interpretation of the sentencing provisions de

novo and the imposition of a sentence following revocation of supervised release

for abuse of discretion. United States v. Quinones, 136 F.3d 1293, 1294 (11th Cir.

1998); see also United States v. Thompson, 976 F.2d 1380, 1381 (11th

Cir.1992)(held that a sentence of twenty-four months following the revocation of

supervised release was not an abuse of discretion).
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A sentencing court, in imposing a sentence upon revocation of a defendant’s

supervised release, must consider the factors enumerated in 18 U.S.C. § 3553,

including the nature and circumstances of the offense, the characteristics and 

history of the defendant, and the need to deter future criminal conduct and to

protect the public. The Sentencing Commission expressly “adopted [the] approach

that . . . at revocation the court should sanction primarily the defendant’s breach of

trust, while taking in account, to a limited degree, the seriousness of the

underlying violation and the criminal history of the violator.” U.S.S.G. Ch. 7, Pt.

A, intro. comment. (3)(b). 

In the instant case, Frank was sentenced to the statutory maximum sentence

of 24 months’ imprisonment for the revocation of supervised release imposed for

the violation of 18 U.S.C. § 2314. The district court sentenced Frank to the

maximum sentence because Frank had a previous forgery conviction, had three

fraud convictions, and was currently on state probation for theft and forgery and

theft by taking. Accordingly, the court determined that Frank’s criminal behavior

and similar course of conduct warranted the maximum sentence. Frank does not

dispute the district court’s findings regarding her criminal history. Nor does she

contest the district court’s finding that she violated the conditions of her

supervised release by (1) violating state law between April 1, 2002, and December
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31, 2002, by making unauthorized credit purchases on company accounts without

the prior knowledge or approval of her employer; (2) failing to make ordered

restitution payments; (3) failing to report to the probation officer as directed; and

(4) associating with a convicted felon without the permission of the probation

officer. While each of Frank’s underlying violations may not have been severe

individually, it is evident that she continuously ignored the explicit conditions of

her supervised release. This pattern of disregard for the system demonstrates a

breach of trust sufficient to support the district court’s decision to sentence Frank

to the statutory maximum of 24 months. U.S.S.G. Ch. 7, Pt. A, intro. comment.

(3)(b). 

Accordingly, we hold that (1) the district court’s apparent failure to consider

the presumptive sentencing range under U.S.S.G. § 7B1.4 did not prejudice

Frank’s substantial rights as the sentence imposed far exceeded the presumptive

range under § 7B1.4, indicating that consideration of the § 7B1.4 range would not

have influenced the length of Frank’s sentence; and (2) Frank’s sentence was not

unreasonable, given her violation of state law, and other non-compliance with the

conditions of her release. 

AFFIRMED.
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