In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-1812

U NITED S TATES OF A MERICA,
                                              Plaintiff-Appellee,
                               v.

C HRISTOPHER R. B ERRY,
                                          Defendant-Appellant.


          Appeal from the United States District Court
              for the Western District of Wisconsin.
          No. 05 CR 169—Barbara B. Crabb, Chief Judge.


  A RGUED S EPTEMBER 22, 2009—D ECIDED O CTOBER 22, 2009




  Before E ASTERBROOK, Chief Judge, and B AUER and
R OVNER, Circuit Judges.
  B AUER, Circuit Judge. Christopher Berry was arrested
for violating the terms of his supervised release
following his conviction and imprisonment for possessing
counterfeit cashier’s checks. The district court sentenced
him to 14 additional months in prison, to be followed by
36 months of supervised release. In his appeal, Berry
argues that the district court based its sentencing
decision on erroneous fact finding. Specifically, Berry
2                                             No. 09-1812

points to two statements made by the district judge as
evidence that the sentence imposed was based on the
mistaken determination that Berry had committed
forgery, counterfeiting, and had stolen a check while on
release. But the statements were not part of the district
court’s factual findings, and did not form the basis
for Berry’s sentence; we affirm.


                  I. BACKGROUND
  On March 7, 2006, Berry pleaded guilty to
possessing counterfeit cashier’s checks in violation of
18 U.S.C. § 513(a). At the end of his prison term, he
began a 36-month term of supervised release. Under
the terms of the release, Berry could not open any
checking account without his probation officer’s ap-
proval. He was also prohibited from associating with-
out permission with anyone convicted of a felony.
  Between late October and early December 2008, Berry
opened three bank accounts in violation of the terms of
his supervised release. In addition, Berry violated the
terms of his release by associating with a felon.
  After a warrant issued for Berry’s arrest, the district
court held a hearing on March 23, 2009, to determine
whether to revoke the supervised release. Berry
stipulated to opening the bank accounts and associating
with a felon and agreed that his conduct amounted to
Class C violations. Based on Berry’s criminal history
category of VI and the Class C violations, both the proba-
tion officer and the government recommended revocation
No. 09-1812                                              3

and imprisonment within the Guidelines range of 8 to
14 months. The judge then made the following factual
findings on the record with respect to Berry’s post-release
conduct: that he violated the conditions of his release by
opening a joint checking account with his wife on
October 29, and individual accounts on November 3, and
December 8; that he further violated the terms of his
release on January 21, 2009, by associating with a
convicted felon; and that these incidents constituted
violations of his supervised release.
  After making these findings, the district court gave
Berry the opportunity to speak on his own behalf. Both
Berry and his attorney raised the fact that he had paid
back some of the money overdrawn from his accounts.
Both requested leniency from the court. During the ex-
change, the district judge explained her view of Berry’s
overall conduct, both pre- and post-conviction:
   I would like to think that you had a chance to change
   your behavior, but when I look at the behavior
   before you were convicted . . . [and] that you resumed
   immediately after being released from prison, I see
   nothing but the same pattern over and over again.
   [Your attorney] has said well, Mr. Berry has paid back
   most of the money that he obtained with the $4,000
   check that was not his to deposit. . . . But what I see
   is a continued pattern of your getting women to
   marry you . . . and [using] their money to buy
   anything you want to; use any kind of forged counter-
   feit instrument . . . and I don’t see any way to keep
   you out of trouble other than putting you in custody.
4                                              No. 09-1812

R. at 6-7. Later in the discussion the judge said, “I think
your violations warrant revocation,” and sentenced Berry
to 14 months in prison, to be followed by 36 months of
supervised release. R. at 8.
  The district court also issued a written order on the day
of the hearing. United States v. Berry, No. 05-CR-169-S-01,

(W. D. Wis. Mar. 23, 2009). The factual
findings in the written order are identical to those
the judge made at the hearing, referencing only Berry’s
Class C violations. The order does not mention
forgery, counterfeiting or theft.
  In appealing the district court’s sentencing decision,
Berry essentially makes three arguments. First, he
contends that the judge’s use of the terms “forged counter-
feit instrument” and, “$4,000 check that was not his to
deposit,” were factual findings. Berry further claims
that these findings are erroneous because they amount
to determinations of guilt and are not supported by
evidence. Finally, Berry argues that the district court
improperly based its sentencing decision on these findings.


                    II. DISCUSSION
  This court reviews a district court’s factual findings at
sentencing for clear error. United States v. Arnaout, 

, 998 (7th Cir. 2005). However, “not every
fact-based statement a judge makes at sentencing is a
‘factual finding.’ ” United States v. Orozco-Vasquez, 

, 1107 (7th Cir. 2006). By making clear factual
findings, on the record and separated from other fact-
No. 09-1812                                                 5

based statements made at a hearing, district courts
ensure that the basis for sentencing decisions are clear
both to parties and appellate courts.
  We also note that the Sentencing Guidelines are not
mandatory in the context of revocation proceedings, but
as policy statements, they are entitled to great weight.
United States v. Kizeart, 

, 674 (7th Cir. 2007);
United States v. Pitre, 

, 664 (7th Cir. 2007)
(internal citations omitted). But because the Guidelines
give courts “more than the usual flexibility” in this
context, this court will not disturb a sentence imposed
following revocation unless it is plainly unreasonable.

.
  Berry’s challenge to the court’s factual findings is
misplaced because the statements in question were not
factual findings. By the time the exchange between
Berry and the judge took place, the judge had already
placed her factual findings on the record. These findings
mention only the Class C violations to which Berry had
stipulated. If the judge thought that Berry’s violations
constituted forgery, counterfeiting, and fraud as he
claims, she made no mention of this in her factual find-
ings. The district court’s written order, issued the
same day as the hearing, contains explicit factual
findings that track those made during the hearing. The
order makes no mention of forgery, counterfeiting, and
theft; the district court used these terms only as part of her
discussion with Berry, and not as part of her factual
findings.
  The 14-month prison term imposed is within the Guide-
lines range for the Class C violations to which Berry
6                                             No. 09-1812

stipulated. As criminal conduct punishable by a term in
prison over one year, forgery and counterfeiting are
actually Class B violations. See 18 U.S.C. § 513 (2008);
U.S.S.G. § 7B1.1(a)(2). However, when imposing
its sentence, the court referenced only the Class C viola-
tions to which Berry stipulated. Under § 7B1.4(a) of the
Guidelines, a 14-month sentence is within the appro-
priate range for Berry’s violations.


                  III. CONCLUSION
  Because the district court’s factual findings were not
clearly erroneous, and because the sentence imposed is
not plainly unreasonable, we A FFIRM .




                         10-22-09