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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 91-1854
___________________________
UNITED STATES OF AMERICA,
Plaintiff-appellee,
VERSUS
THOMAS GERALD HEADRICK,
Defendant-appellant.
___________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
____________________________________________________
(June 11, 1992)
Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.
DAVIS, Circuit Judge:
Thomas Headrick appeals the sentence imposed upon revocation
of his supervised release as inconsistent with the relevant policy
statements of the Sentencing Guidelines. We conclude that the
district court was not obligated to follow those policy statements
and affirm.
I.
In September 1989, following conviction on a firearms
violation, the district court for the Western District of Texas
sentenced appellant Headrick to twelve months imprisonment to be
followed by three years of supervised release. Headrick began
serving his term of supervised release in September 1990. The
conditions of supervised release required Headrick to refrain from
possessing or using any controlled substance. On sixteen occasions

between January and July 1991, Headrick submitted urine specimens
that tested positive for cocaine, amphetamine, or methamphetamine.
In August 1991, following a hearing, the district court for
the Northern District of Texas1 revoked Headrick's supervised
release pursuant to 18 U.S.C. § 3583. The district court then
considered the sentencing range of 12-18 months imprisonment
contained in the policy statements of Chapter 7 of the Sentencing
Guidelines. It rejected imposition of sentence in that range,
however, and imposed a sentence of twenty-four months. Headrick
appeals that sentence.
II.
We review the district court's interpretation of statutes and
the Guidelines de novo, but its application of the Guidelines to
the facts for clear error. United States v. Gaitan, 954 F.2d 1005,
1008 (5th Cir. 1992). We will uphold a sentence unless it (1) was
imposed in violation of law, (2) resulted from an incorrect
application of the guidelines, (3) was outside the guideline range
and is unreasonable, or (4) was imposed for an offense for which
there is no applicable sentencing guideline and is plainly
unreasonable. 18 U.S.C.A. § 3742(e) (West, Supp. 1992). There are
no applicable guidelines for sentencing after revocation of
supervised release; there are only policy statements. See U.S.
Sentencing Commission, Guidelines Manual Ch. 7 "Violations of
Probation and Supervised Release" (Nov. 1990). It follows that we
1Supervision of Headrick's case was transferred from the
Western to the Northern District of Texas in July 1991.
2

will uphold Headrick's sentence unless it is in violation of law or
is plainly unreasonable.
A.
We first consider whether Headrick's sentence is in violation
of law because of his suggestion that the Guideline policy
statements bind a district court when sentencing a defendant after
revoking a term of supervised release. This is the first time we
have given plenary review to this question. This court has held
previously that a district court's failure to follow the policy
statements of Chapter 7 is not plain error. United States v.
Ayers, 946 F.2d 1127, 1130-31 (5th Cir. 1991); United States v.
Montez, 952 F.2d 854, 859-60 (5th Cir. 1992).
Supervised release is governed by 18 U.S.C. § 3583. Headrick
focuses considerable attention on § 3583(e)(3). Under that
section, a district court may revoke a term of supervised release
and order a defendant imprisoned "if it finds by a preponderance of
the evidence that the person violated a condition of supervised
release, pursuant to the provisions of the Federal Rules of
Criminal Procedure that are applicable to probation revocation and
to the provisions of applicable policy statements issued by the
Sentencing Commission."2 Headrick contends that the phrase
2Section 3583(e)(3) provides that
(e) Modification or conditions or revocation. -- The court
may, after considering the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),
and (a)(6)--
...
(3) revoke a term of supervised release, and require
the person to serve in prison all or part of the term
of supervised release without credit for time
previously served on postrelease supervision, if it
3

"pursuant to the ... applicable policy statements" requires the
district court to follow the policy statements; the government
maintains that the statute merely requires the district court to
consider the policy statements. We find it unnecessary to resolve
this dispute and parse the language of § 3583(e)(3), however,
because Headrick's case is governed by § 3583(g).
Section 3583(g) requires a district court to revoke a
defendant's term of supervised release upon finding that the
defendant possessed a controlled substance.3 The district court
specifically found that Headrick had possessed controlled
substances and that it "ha[d] no choice but to revoke" his term of
supervised release under § 3583(g). Headrick has not objected to
this finding. Thus Headrick was subject to revocation of his term
finds by a preponderance of the evidence that the
person violated a condition of supervised release,
pursuant to the provisions of the Federal Rules of
Criminal Procedure that are applicable to probation
revocation and to the provisions of applicable policy
statements issued by the Sentencing Commission, except
that a person whose term is revoked under this
paragraph may not be required to serve more than 3
years in prison if the offense for which the person was
convicted was a Class B felony, or more than 2 years in
prison if the offense was a Class C or D felony.
18 U.S.C.A. § 3583(e)(3) (West, Supp. 1992) (emphasis added).
3Section 3583(g) provides that:
(g) Possession of controlled substance.-- If the defendant
is found by the court to be in the possession of a
controlled substance, the court shall terminate the term of
supervised release and require the defendant to serve in
prison not less than one-third of the term of supervised
release.
18 U.S.C.A. § 3583(g) (West, Supp. 1992) (emphasis added).
Section 3583(g) applies to all defendants who begin a term of
supervised release after December 31, 1988. Anti-Drug Abuse Act
of 1988, Pub. L. No. 100-690 § 7303(b), 102 Stat. 4181, 4464.
4

of supervised release regardless of how we might interpret §
3583(e)(3).
But the fact that the district court revoked Headrick's
supervised release pursuant to § 3583(g) rather than § 3583(e)(3)
does not obviate our need to decide the extent to which the policy
statements of Chapter 7 of the Guidelines Manual bind sentencing
courts. Section 3583(g) required the district court to sentence
Headrick to at least twelve months imprisonment (one-third of his
term of supervised release). Section 3583(g) does not specify a
maximum sentence. The district court sentenced Headrick to twenty-
four months imprisonment. This exceeds the range of 12-18 months
provided by the Guideline policy statements. U.S.S.G. § 7B1.4.
Thus we still must decide whether the district court was obligated
to follow the policy statements, as Headrick suggests.
Congress requires the United States Sentencing Commission to
issue both "guidelines" and "general policy statements regarding
application of the guidelines" in performing its duties. 28 U.S.C.
§§ 994(a)(1) and (2). Headrick would have us hold that policy
statements are as binding on the courts as the guidelines
themselves. That Congress differentiates between guidelines and
policy statements, however, suggests that the two are not to be
given equal weight. Relatedly, we have held that policy statements
"do not have the force of the Guidelines," although we have not yet
decided what force they do carry. United States v. Montez, 952
F.2d 854, 859 (5th Cir. 1992). Today we hold that district courts
must consider the policy statements contained in Chapter 7 of the
5

Guidelines when sentencing a defendant upon revoking his supervised
release, but that these policy statements are advisory only.
Congress treats policy statements and guidelines differently.
Section 3553(b) requires a sentencing court to "impose a sentence
of the kind, and within the range, referred to in" the guidelines,
unless an adequate basis for departure exists. 18 U.S.C. § 3553(b)
(emphasis added). In contrast, section 3553(a)(5) requires a
sentencing court merely to "consider ... any pertinent policy
statement" when sentencing. 18 U.S.C. § 3553(a)(5) (emphasis
added); Ayers, 946 F.2d at 1130; Montez, 952 F.2d at 859. Either
party may appeal a sentence imposed as a result of an incorrect
application of a guideline. 18 U.S.C.A. §§ 3742(a)(2) and (b)(2)
(West, 1985 and Supp. 1992). No similar appeal lies for an
incorrect application of a policy statement. See S. Rep. No. 98-
225, 98th Cong., 2d Sess. 167, reprinted in 1984 U.S.C.C.A.N. 3182,
3350 ("It should be noted that a sentence that is inconsistent with
the sentencing guidelines is subject to appellate review, while one
that is consistent with the guidelines but inconsistent with the
policy statements is not."). The Sentencing Commission must submit
for Congress's approval amendments to the guidelines, but not
amendments to policy statements. 28 U.S.C. § 994(p); United States
v. Kelley, 956 F.2d 748, 753 (7th Cir. 1992). The legislative
history accompanying the Crime Control Act of 1984 confirms that
Congress intended the policy statements to "supplement" the
guidelines to "further the ability of the Federal criminal justice
system to achieve the purposes of sentencing." Id. at 51, 165,
reprinted in 1984 U.S.C.C.A.N. at 3234, 3348-49. We are satisfied,
6

then, that Congress did not intend policy statements generally to
have the same binding effect as guidelines.
Headrick contends that this court previously has treated
policy statements as binding. In United States v. White, 945 F.2d
100 (5th Cir. 1991), we vacated the district court's downward
departure based on the defendant's youth as inconsistent with §
5H1.1 of the Guidelines, a policy statement. We do not consider
our decision today as inconsistent with White. First, the White
court did not even mention that § 5H1.1 is a policy statement, nor
compare the force of policy statements to guidelines. Second,
White involved a departure from a guideline sentence and a
different set of policy statements. In § 3553(b), Congress sharply
curtailed a district court's ability to sentence a defendant below
the applicable guideline range. It limited such discretion to
situations where "there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission in formulating the
guidelines." 18 U.S.C. § 3553(b). In determining whether a
circumstance was adequately taken into consideration, Congress
directs courts to "consider only the sentencing guidelines, policy
statements, and official commentary of the Sentencing Commission."
Id. (emphasis added). The policy statement of § 5H1.1 reflects the
Commission's consideration of youth in its scheme. Thus the White
court was correct to follow § 5H1.1. "Where ... a policy statement
prohibits a district court from taking a specified action, the
statement is an authoritative guide to the meaning of the
7

applicable guideline." Williams v. United States, 503 U.S. __, 112
S.Ct. 1112, 1119, 117 L.Ed.2d 341, 353 (1992).
Thus, although policy statements generally do not have the
force of guidelines, particular policy statements may carry such
force when they inform the application of a particular guideline or
statute. "Other policy statements in the Sentencing Guidelines
must be examined separately in the context of their statutory basis
and their accompanying commentary." United States v. Lee, 957 F.2d
770, 773 (10th Cir. 1992); see also United States v. Rogers, 917
F.2d 165, 169 (5th Cir. 1990) (referring to § 4A1.3 as "non-binding
policy statement"), cert. denied, 111 S.Ct. 1318 (1991). We must
therefore examine the particular statutes, guidelines, and policy
statements associated with sentencing upon revocation of supervised
release to determine the force of the policy statements applicable
to Headrick.
Congress specifically directed the Sentencing Commission to
issue "guidelines or general policy statements regarding the
appropriate use of the provisions for ... revocation of supervised
release ...." 28 U.S.C. § 994(a)(3) (emphasis added). The
Sentencing Commission promulgated policy statements regarding
revocation of supervised release in Chapter 7 of the Guidelines
Manual, effective November 1, 1990. As the Tenth Circuit
recognized recently, these policy statements are "especially
amenable to a flexible and considered application." Lee, 957 F.2d
at 772-73. The Sentencing Commission deliberately chose to issue
policy statements, but no guidelines, on revocation for the time
being:
8

At this time, the Commission has chosen to promulgate policy
statements only. These policy statements will provide
guidance while allowing for the identification of any
substantive or procedural issues that require further review.
The Commission views these policy statements as evolutionary
and will review relevant data and materials concerning
revocation determinations under these policy statements.
Revocation guidelines will be issued after federal judges,
probation officers, practitioners, and others have the
opportunity to evaluate and comment on these policy
statements.
U.S. Sentencing Commission, Guidelines Manual Ch. 7, Pt. A1 intro.
comment (Nov. 1990) (emphasis added). The Commission emphasized
that it chose to issue "advisory policy statements" rather than
guidelines to provide "greater flexibility to both the Commission
and the courts." Id. Pt. A3(a). The Commission expressed its
intention to issue revocation guidelines after "an adequate period
of evaluation." Id.
We conclude from this that neither Congress nor the Sentencing
Commission intended the policy statements of Chapter 7 to be
binding on the courts. Congress specifically gave the Sentencing
Commission the choice to issue guidelines or policy statements
regarding the revocation of supervised release. 18 U.S.C. §
994(a)(3). The Sentencing Commission, cognizant of Congress's
differential treatment of guidelines and policy statements, chose
to issue only "advisory policy statements" at this time. Unlike
White and Williams, the policy statements here do not interpret or
explain any statute or guideline. They stand alone, and in a state
of nascency. We have no trouble, therefore, in holding that "the
policy statements regarding revocation of supervised release
contained in Chapter 7 of the [Guidelines] are advisory rather than
mandatory in nature." United States v. Lee, 957 F.2d 770, 773
9

(10th Cir. 1992); United States v. Blackston, 940 F.2d 877, 893 (3d
Cir.), cert. denied, 112 S.Ct. 611 (1991). Thus the district court
did not impose a sentence "in violation of law" by refusing to
follow the policy statements of Chapter 7.
B.
Headrick's sentence was not otherwise imposed in violation of
law. The district court was still required by § 3553(a)(5) to
"consider" any relevant policy statement when sentencing Headrick.
The district court classified Headrick's violations of the
conditions of his supervised release according to U.S.S.G. §
7B1.1(a) (policy statement). The court then consulted the
Revocation Table and determined that, at Headrick's criminal
history category of IV, the Sentencing Commission recommended a
sentence of 12-18 months imprisonment. U.S.S.G. § 7B1.4 (policy
statement). The district court concluded, however, that this range
was inadequate "to take into account the conduct of this defendant
as reflected by the record in this case." The court elaborated by
stating that "the primary purpose of the new sentence is to
sanction the defendant for his breach of trust. There couldn't be
a more flagrant breach of trust in this case" than Headrick's
sixteen violations of three different conditions of supervised
release. The court considered the frequency and number of
violations, the need for deterrence, and Headrick's inability "to
deal with his use of illegal controlled substances under the
supervised release environment."
10

Thus the district court considered but rejected the policy
statements in light of the other relevant factors of § 3553(a).4
The district court was required to do no more. Blackston, 940 F.2d
at 859.
C.
4Section 3553(a) provides that:
(a) Factors to be considered in imposing a sentence. --
The court shall impose a sentence sufficient, but not
greater than necessary, to comply with the purposes set
forth in paragraph (2) of this subsection. The court, in
determining the particular sentence to be imposed, shall
consider--
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed--
(A) to reflect the seriousness of the offense,
to promote respect for the law, and to provide
just punishment for the offense;
(B) to afford adequate deterrence to criminal
conduct;
(C) to protect the public from further crimes
of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical care,
or other correctional treatment in the most
effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range
established for the applicable category of offense
committed by the applicable category of defendant as
set forth in the guidelines that are issued by the
Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2)
and that are in effect on the date the defendant is
sentenced;
(5) any pertinent policy statement issued by the
Sentencing Commission pursuant to 28 U.S.C. § 994(a)(2)
that is in effect on the date the defendant is
sentenced;
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records who
have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims
of the offense.
18 U.S.C.A. § 3553(a) (West, 1985 and Supp. 1992).
11

Finally, Headrick's sentence is not "plainly unreasonable."
See 18 U.S.C.A. § 3742(e)(4) (West, Supp. 1992). The district
court was required to impose a sentence of at least twelve months
pursuant to § 3583(g). The policy statements suggested a range of
12-18 months. The district court sentenced Headrick to twenty-four
months. Unlike the permissive revocation provision of §
3583(e)(3), the mandatory revocation provision of § 3583(g) does
not provide any maximum sentence. Headrick would be subject to a
maximum sentence of twenty-four months under § 3583(e)(3). It
follows that imposing that same sentence under § 3583(g) cannot be
plainly unreasonable.
III.
For the foregoing reasons, the sentence imposed by the
district court is
AFFIRMED.
12