UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: December 14, 1989.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
KENNETH JAMES SAVAGE, DEFENDANT-APPELLANT
Appeal from the United States District Court for the Western District of Wisconsin. No. 88-CR-99-S, John C. Shabaz, Judge. Original Opinion reported at,.
Wood, Easterbrook and Ripple, Circuit Judges.
Savage contends that our disposition conflicts with United States v. Lee, 887 F.2d 888 (8th Cir. 1989), which held Guideline 2J1.6 unlawful to the extent it withholds the authority to consider the difference between the maximum sentence for the underlying offense and the actual sentence. We do not perceive a conflict, however, for two reasons. First, Savage did not contend (and our opinion did not decide) whether § 2J1.6 is unlawful on this account. He argued that the guideline is unlawful because it deprives the district court of authority to take into account the brevity of the delay in reporting, a different subject; our opinion deals only with that subject. Second, Lee does not deal with a situation such as ours where the sentence actually imposed on the underlying offense is within the range used to determine the sentence for failure to report. See Lee, 887 F.2d at 892 n.6. Savage was sentenced under provisions applicable to those whose maximum sentence is between five and fifteen years, and his actual sentence fell within that range. By contrast, Lee was sentenced on the underlying offense far below the range used to determine her sentence for failure to report. Any difference between maximum and actual sentences therefore does not arise in this case.
All of the judges on the panel have voted to deny rehearing. The petition for rehearing is therefore DENIED.
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