87 F3d 1325 United States v. Waw Jr

87 F.3d 1325

UNITED STATES of America, Plaintiff-Appellee,
v.
W.A.W., JR., Defendant-Appellant.

No. 95-30309.

United States Court of Appeals, Ninth Circuit.

Submitted June 7, 1996.*
Decided June 26, 1996.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

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1

Before: BROWNING, T.G. NELSON, Circuit Judges, and SMITH,** District Judge.

2

MEMORANDUM***

3

If appellant had been an adult, his guideline sentencing range would have been 70 to 87 months. U.S.S.G. § 2A3.1. Because appellant's sentence, even on resentencing, was 54 months, 18 U.S.C. § 5037(c)(1) was not violated.

4

Appellant's argument that recent amendments to 18 U.S.C. § 3553 make the Chapter Seven policy statements binding on the courts is without merit. United States v. Plunkett, 74 F.3d 938, 940 (9th Cir.1996).

5

Sentencing guideline section 7B1.4 is a policy statement which recommends a sentencing range. In resentencing upon the revocation of probation, the court may reject the suggested sentencing range after consideration of the Chapter Seven policy statements. United States v. Forrester, 19 F.3d 482, 484 (9th Cir.1994). The district court discussed rehabilitation but did not consider the policy statements of Chapter Seven and the parties did not bring Chapter Seven to the court's attention.

6

The sentence is VACATED, and the case is REMANDED with instructions to resentence the defendant, taking into account the policy statements in section 7B1.4.

*

The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a) and Ninth Circuit Rule 34-4

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**

Honorable Fern M. Smith, United States District Judge for the Northern District of California, sitting by designation

***

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3