WILLIAMS, Circuit Judge.
James W. Snyder was sentenced to eight years' reimprisonment upon revocation of his supervised release. When the district court imposed Snyder's sentence, it did not acknowledge the advisory range recommended by the United States Sentencing Guidelines. Nor is it clear whether the court considered, as required by 18 U.S.C. § 3553(a)(6), whether the sentence would create unwarranted disparities among similarly situated defendants. Because we cannot tell whether the court considered the advisory range and the § 3553(a) factors, we vacate Snyder's sentence and remand for resentencing.
In October 1996, Snyder and another man took an eleven-year-old boy to Snyder's house, where they showed the boy pornography and made him drink beer and smoke marijuana. Snyder and his companion then sodomized the boy, forced the boy to perform oral sex on them, and took pictures of themselves engaging in sex acts with the boy. A search of Snyder's house revealed that Snyder had more than 1,000 child pornography pictures on his computer and that he traded pornography with friends online.
Snyder was charged with using a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct in violation of 18 U.S.C. § 2251(a) (Count 1); receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count 2); distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2) (Count 3); and possession of child pornography in violation of 18 U.S.C. § 2252(a)(3)(B) (Count 4). After a jury trial, Snyder was convicted of all four counts and was sentenced to 168 months in prison, a six-year term
Snyder began serving his term of supervised release on April 16, 2009. On June 17, 2009, at the request of Snyder's probation officer, Snyder's conditions of supervised release were modified to prohibit him from using a computer with access to the internet, to prohibit him from possessing pornography, and to require him to participate in sex-offender treatment.
Unfortunately, Snyder did not comply with the modified conditions. Although he went to sex-offender treatment, he showed such resistance that he was eventually discharged from the program due to non-compliance.
On September 29, 2009, Snyder's probation officer filed a Special Report recommending that Snyder's supervised release be revoked due to three violations: (1) failure to comply with sex-offender treatment; (2) using a computer to access the internet; and (3) viewing pornography.
At his supervised release revocation hearing, Snyder asked that he be given an opportunity to return to sex offender treatment with a new therapist, attributing his prior recalcitrance to stress and to personal disagreements with his former therapist. Snyder's probation officer recommended nine months per each of the four original convictions, imposed consecutively. The government asked for what it believed to be the statutory maximum of two years per conviction to run consecutively.
The district court imposed eight years. In the court's view, Snyder remained very dangerous to children. According to the court, the conditions Snyder violated were central to the efforts to rehabilitate him and to protect children. Snyder had violated those conditions so soon after his release from prison and after the modification of the terms of his release that the court believed that attempting to supervise Snyder while on release was "a fool's errand." The court concluded that the "safest and most appropriate course" was to incapacitate Snyder for as long as possible. During the hearing, the court made no mention of the advisory range recommended by the Guidelines. Snyder appeals his sentence.
Snyder contends that the district court committed procedural error because it did not take into account the advisory range under the Guidelines and did not consider whether imposing an above-Guidelines sentence would create unreasonable disparities among similarly situated defendants. We review the procedures followed by the district court de novo. See United States v. Gibbs, 578 F.3d 694, 695 (7th Cir.2009).
As with an initial sentencing decision, when deciding whether to revoke a term of supervised release, the district court must begin its analysis with the recommended imprisonment range found in the Guidelines. United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008). Although the advisory range "informs rather than cabins" the court's discretion, the court must nevertheless take the Guidelines into account. Id.
The court must also consider the factors enumerated in 18 U.S.C. § 3553(a): (1) the nature and circumstances of the offense; (2) the history and characteristics of the defendant; (3) the need to deter future crime, protect the public, and provide the defendant with necessary services
Section 3583(e)(3) provides that a court may revoke a term of supervised release, "and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release ... except that a defendant whose term is revoked ... may not be required to serve ... more than two years in prison if such offense is a class C or D felony." § 3583(e)(3). In 1997, when Snyder was sentenced, all of his convictions were class C felonies.
The recommended range under the Guidelines would have been much lower. There are three grades of supervised release violations under the Guidelines. A Grade C violation encompasses conduct constituting an offense punishable by less than a year or a violation of any other condition of supervised release.
The Guidelines range applicable to Grade C violations is three to nine months for an offender who, like Snyder, has a
Although the district court need not explain why a sentence differs from the Sentencing Commission's recommendation as long as the sentence is appropriate under the § 3553(a) factors, the court must still "start by using the Guidelines to provide a benchmark that curtails unwarranted disparities." United States v. Kirkpatrick, 589 F.3d 414, 416 (7th Cir. 2009). The court "need not accept the Sentencing Commission's penological framework," but it may not ignore the Sentencing Commission's views embodied in the Guidelines. See United States v. Bartlett, 567 F.3d 901, 908-09 (7th Cir. 2009). A departure from the Guidelines, especially a significant one, must be carefully explained. See Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The court here, however, made no reference to the advisory range at all.
Also, we cannot be sure that the court considered whether imposing what it believed to be the harshest possible sentence would lead to unwarranted disparities among similarly situated defendants. The court explained that, in its view, Snyder needed to be sentenced to the maximum term legally permissible because he was dangerous to children, his violations were serious, and they occurred shortly after his release. But these reasons mainly address Snyder's history and characteristics, the nature of his offenses, and the need to deter future crime and protect the public. See § 3553(a)(1)-(a)(3). The court never discussed whether Snyder's sentence would create unwarranted sentencing disparities among defendants. See Bartlett, 567 F.3d at 907 (explaining that the kind of disparity with which § 3553(a)(6) is concerned is an unjustified difference across judges or districts).
"Whenever a court gives a sentence substantially different from the Guidelines' range, it risks creating unwarranted sentencing disparities, in violation of 18 U.S.C. § 3553(a)(6), for most other [courts] will give sentences closer to the norm." Kirkpatrick, 589 F.3d at 415. "[L]eaping close to the statutory maximum creates a risk of unwarranted disparity with how similar offenders fare elsewhere—not only because it may overpunish [a defendant], but because it leaves little room for the marginal deterrence of persons whose additional deeds are more serious...." Id. While we do not express an opinion as to whether an above-Guidelines sentence is warranted in this case, the district court could not impose such a sentence without careful consideration of the advisory range and the statutory factors. See Gall, 552 U.S. at 50, 128 S.Ct. 586 ("If [the court] decides that an outside-Guidelines sentence is warranted, [it] must consider the extent of the deviation and ensure that the justification is sufficiently compelling to support the degree of the variance. We find it uncontroversial that a major departure should be supported by a more significant justification than a minor one.").
Had the district court correctly calculated and carefully reviewed the Guidelines range, we would be more confident that it also considered the need to avoid unwarranted disparities. See id. at 54, 128 S.Ct. 586 ("[A]voidance of unwarranted disparities was clearly considered by the Sentencing Commission when setting the Guidelines ranges. Since the District Judge
The government contends that any error committed by the district court was harmless because the court would have imposed the same sentence regardless. But adopting the government's position in this case would eviscerate the requirement that the district court take the Guidelines into account. A failure to altogether consider the Guidelines is not harmless. See Gibbs, 578 F.3d at 695-96 (remanding for resentencing where the district court did not acknowledge the advisory range).
The government also argues that Snyder forfeited his contention that the district court erred because he did not "object" to the sentence imposed. But we have repeatedly held that the rules do not require a defendant to complain about a judicial choice after it has been made so long as the defendant argued for a lower sentence before the court imposed the sentence. Bartlett, 567 F.3d at 910; see also United States v. Paul, 542 F.3d 596, 599 (7th Cir.2008). Snyder argued for a lower sentence before the court sentenced him and therefore preserved his options on appeal.
Finally, Snyder also argues on appeal that his sentence is substantively unreasonable. Because we find that the district court did not follow the proper procedure in sentencing Snyder, we will not address whether the sentence is substantively unreasonable. The parties should address on remand the impact of Snyder's original sentence of one six-year term of supervised release in light of § 3583(e)(3).
We therefore VACATE Snyder's sentence and REMAND for proceedings consistent with this opinion.
We also note that it is odd that the court sentenced Snyder to only one term of supervised release because when Snyder was sentenced the maximum term of supervised release for a Class C felony under § 3583(b) was three years. It may be that the court intended to sentence Snyder to two three-year terms of supervised release or some other combination. However, even if the court meant to sentence Snyder differently, it no longer has the authority to modify the original sentence to correct the error. See id. at 934 ("A district judge may still correct a final judgment in a criminal case to reflect the sentence he actually imposed but he cannot change the sentence he did impose even if the sentence was erroneous.").