United States of America, Plaintiff-appellee, v. Timothy K. Denne, Defendant-appellant, 978 F.2d 1259 (6th Cir. 1992)

ORDER

Timothy K. Denne appeals a district court order revoking his term of supervised release and sentencing him to eighteen months imprisonment. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a). Counsel for both parties have waived oral argument.

In 1989, Denne pleaded guilty to credit card fraud and was sentenced to three months imprisonment, three months in a community treatment center, and a three year term of supervised release. In December 1991, after Denne's release from prison and the community treatment center, the probation office filed a report detailing numerous violations by Denne of his supervised release. The district court found that Denne had committed the violations alleged in the probation office report and revoked Denne's supervised release. The court sentenced him to eighteen months imprisonment. Denne has filed a timely appeal from that order.

Denne argues that, in sentencing him, the district court should have followed the policy statement set forth at U.S.S.G. § 7B1.4, which dictates a sentencing range of four to ten months. This court recently held that the policy statement in § 7B1.4 is not binding upon the district court. United States v. Cohen, 965 F.2d 58, 61 (6th Cir. 1992). However, the district court must consider the policy statement in rendering a sentence for a violation of supervised release. Id.

In the present case, it is not clear from the record that the district court considered U.S.S.G. § 7B1.4 in imposing its sentence. The district court did not refer to the policy statement either in its order revoking supervised release and imposing sentence or at the sentencing hearing. As the dictates of Cohen are mandatory, we vacate and remand the case so that the district court may consider § 7B1.4 when imposing Denne's sentence.

Accordingly, we vacate and remand this case to the district court for resentencing. Rule 9(b) (3), Rules of the Sixth Circuit.