United States v. Darrell W. Jones , 798 F.3d 613 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-2787
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRELL W. JONES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 CR 9 — Charles R. Norgle, Sr., Judge.
____________________
ARGUED MARCH 31, 2015 — DECIDED AUGUST 19, 2015
____________________
BeforeKANNE and ROVNER, Circuit Judges, and
SPRINGMANN, District Judge. ∗
KANNE, Circuit Judge. Defendant Darrell Jones was sen-
tenced to eighteen months in prison and five years of super-
∗The Honorable Theresa L. Springmann, of the United States District
Court for the Northern District of Indiana, sitting by designation.
2 No. 14-2787
vised release for failure to register as a sex offender. On ap-
peal, he claims the district court ignored his arguments in mit-
igation and imposed unwarranted conditions of supervised
release. We disagree and affirm Jones’s sentence.
I. BACKGROUND
A. Jones’s Criminal History and Offense of Conviction
In the mid-1980s, when Jones was a young adult living in
Florida, he repeatedly sexually abused a young girl under the
age of twelve. Their exact ages are unclear from the record,
but the government says he was 21 and she was 10 at the time.
The victim was a relative of his wife (now ex-wife). Jones’s
mother-in-law found him half-naked on top of the girl and
reported the incident to the police. The victim later told the
police that Jones had sexually assaulted her six to eight times
during the preceding year. In 1988 Florida brought charges,
and Jones pled guilty to three counts of attempted sexual bat-
tery. He was sentenced to 12 years in prison plus 10 years of
probation.
Jones was released from prison in 1994 after serving
roughly half his sentence. (The reason for his early release is
unclear.) As a result of his convictions, he had a lifelong obli-
gation to register as a sex offender under the Sex Offender
Registration and Notification Act (“SORNA”) and to update
his registration whenever he moved. See 42 U.S.C. §§ 16913
and 16915. After his release, he complied with his registration
obligation—with one exception discussed below—through
2010. He had no further sex-offense convictions, and he found
employment at a funeral home. These were steps in the right
direction.
No. 14-2787 3
Unfortunately, however, he continued to have problems.
One of his probation conditions required him to undergo sex-
offender treatment. Jones began the prescribed program, but
was terminated in 1996 for refusal to participate and contin-
ued denial. He never completed treatment—in violation of his
probation. What he did instead was rack up more criminal
convictions: for trespass, destruction of property, and unau-
thorized use of an automobile in 1988 (in Virginia); and for
domestic battery in 2000 (in Florida). 1 To compound matters,
he did not report his domestic-battery arrest to his probation
officer—a further probation violation.
A Florida court sent Jones back to prison in 2000 to serve
concurrent sentences for his probation violations and the do-
mestic-battery conviction. Jones reports that at some point
during his incarceration, he twice attempted to commit sui-
cide by hanging himself. He survived both attempts, and in
late 2000 he was released from prison again.
As before, Jones took some steps in the right direction. He
completed courses at a Bible college, where he earned a doc-
toral degree in the humanities in 2010. (He already had a
bachelor’s degree from Florida State University.) He became a
licensed, ordained minister in Virginia. And he worked on-
and-off as a funeral attendant, lead-pipe layer, and pastor.
But despite these positive steps, Jones’s legal problems
also continued. In 2001 Jones was convicted for failing to reg-
ister as a sex offender in Virginia. He was also convicted of
several other crimes: driving with a suspended license (once
1 He also had an earlier conviction for grand theft in Florida in 1984—
before the sexual assaults. He received a sentence of probation but later
violated his conditions and had his probation revoked.
4 No. 14-2787
in 2003 and twice in 2009), threatening another person (in
2004), failure to pay child support and failure to appear in
court (in 2007), and the assault and battery of a coworker (in
2005).
Then began the series of events that led to Jones’s instant
offense of conviction and this appeal. In late 2010, after years
of registering as a sex offender (with the one exception in
2001), Jones suddenly stopped. In March 2011, Virginia issued
a warrant for his arrest. In the fall of 2011, he moved to Chi-
cago, where his fiancée had a job. He did not register as a sex
offender in Illinois. He continued living and working in the
Chicago area, initially at a funeral home and then, after being
laid off, as a volunteer pastor. During all that time, Jones did
not register as a sex offender.
He was arrested in 2013. A federal grand jury returned an
indictment charging that for over a year Jones had knowingly
failed to register, as required by SORNA, in violation of 18
U.S.C. § 2250(a). Jones entered a “naked” guilty plea.
B. The First Sentencing Hearing
The probation office issued a presentence report (“PSR”)
detailing Jones’s criminal history and calculating an advisory
guidelines range of 18 to 24 months’ imprisonment (which is
undisputed). Probation recommended 15 months in custody
and 5 years of supervised release, subject to the standard con-
ditions plus fifteen special conditions listed in the PSR.
The district court held a sentencing hearing on May 21,
2014. It first heard argument on the proposed supervised-re-
lease conditions. Jones’s counsel objected to two conditions
authorizing sex-offender treatment, arguing that 26 years had
passed since his underlying sex offenses. But the court noted
No. 14-2787 5
that Jones never completed his prior treatment regimen.
Moreover, the conditions simply permitted probation to eval-
uate Jones to determine whether treatment was necessary—
they did not mandate it. The court approved the conditions.
It also approved conditions restricting Jones’s employ-
ment and requiring him to provide financial information to
his probation officer. The government claimed these were nec-
essary so it could monitor Jones and “make sure that he is not
involved in doing anything that could come close to … child
sex offenses.” The court agreed, adding that the restriction
was “not an unusual provision.” The court’s ruling on two
other conditions limiting Jones’s contact with minors was un-
clear—it first sustained and then overruled his attorney’s ob-
jections. Both sides agreed to strike the remaining eight con-
ditions (which would have limited access to electronics and
pornography), so the court rejected them.
Moving to the issue of Jones’s incarceration, the govern-
ment requested a sentence in the middle of the guidelines
range. It emphasized the heinousness of Jones’s prior sex of-
fenses and argued that his failure to register undermined the
very purpose of SORNA, which is to allow effective supervi-
sion of violent sex offenders. Jones argued for a 6-month
prison term, emphasizing the absence of any sex-offense con-
victions since he committed the underlying crimes. This, his
attorney said, showed a low risk of recidivism. She claimed
Jones was trying to “get[] his life back on the right track.” At
that point, the court interjected: “But he doesn’t work,” de-
spite being $11,000 in arrears on child-support payments. The
court also observed that this was not Jones’s first failure to
register. His counsel contested that point, but after direct and
6 No. 14-2787
cross-examination of Jones, the court made a finding that he
did not in fact timely register in 2001.
Jones himself made a statement as well. “Since my release
from prison in 1994,” he told the court, “I have tried to be a
productive and law-abiding citizen … . I have done my best.”
He claimed he was “not a man of malicious intent” or “full of
excuses,” but rather “a man of God.”
After hearing the arguments, the district court expressly
adopted the PSR’s findings. The court also noted that the PSR
“discusses the 3553 factors. And we have again discussed the
3553 factors today.” But apart from those references, the court
did not walk through the factors in its pronouncement of the
sentence. It acknowledged Jones’s “remorse” and that Jones
“advise[d] the Court that he is a changed person, and that
there is no concern about his future conduct.” The court nev-
ertheless concluded there was “no reasonable basis to depart”
from the guidelines. Instead, it sentenced him to 18 months’
imprisonment, at the bottom of the advisory range.
C. The Second Sentencing Hearing
At the request of counsel, the court continued the hearing
to June 6, 2014, to provide clarification on some of its rulings.
Before that date arrived, on May 29, we issued our opinion in
United States v. Siegel, which emphasized the need to justify
conditions of supervised release with reference to the appli-
cable § 3553(a) factors. 753 F.3d 705, 717 (7th Cir. 2014). In light
of Siegel, the district court requested a supplemental PSR and
allowed both sides to supplement their prior submissions.
With input from the supervisor of the sex-offender unit, the
No. 14-2787 7
probation office proposed seven special conditions. Jones ob-
jected to all but one. 2
The court held a second hearing on July 30, 2014, regard-
ing the supervised-release conditions. Both sides offered ex-
tensive argument covering much of the same ground as be-
fore, but in greater depth and with discussions of the relevant
case law. The district judge was engaged in the arguments and
frequently posed questions. Ultimately, the court adopted all
of the proposed special conditions (with some modifica-
tions). 3
The first two conditions require Jones to “participate in a
mental health and/or sex offender treatment program as di-
rected by the probation officer,” and to “comply with all rec-
ommended treatment.” Two others apply to Jones’s contact
with minors. One prohibits contact “other than while visiting
commercial businesses or as a result of incidental and unin-
tentional contact,” and another forbids volunteer activities
that may bring him into “direct contact with children except
under circumstances approved in advance.” The remaining
conditions allow the government to monitor Jones’s daily ac-
tivities. One restricts his employment and requires him to
seek his probation officer’s approval before changing jobs.
The other requires him to provide copies of financial infor-
mation to his probation officer.
The premise behind all of these conditions is that Jones
poses a risk—in other words, that there is a danger he will
2 The undisputed condition simply requires Jones to register as a sex of-
fender, which, of course, he must do already under federal law.
3 The court also imposed the “standard” conditions of supervised release.
Jones does not challenge the standard conditions on appeal.
8 No. 14-2787
commit another sex offense. That is what the government ar-
gued, pointing to the seriousness of his prior sexual assaults
against a minor, his subsequent refusal of treatment, and his
sudden failure to register, which in the government’s view
raised a red flag. Jones’s counsel, on the other hand, insisted
again that he was “not at a risk of recidivism.”
The court found the government’s argument more persua-
sive. It also gave “substantial weight” to the “comprehensive”
PSR and the probation officer’s assessment regarding “the
needs of the defendant and the risks posed to the commu-
nity,” particularly because the supervisor of the sex-offender
unit had helped craft the proposed conditions. At the close of
the hearing, the government’s attorney asked the court to con-
firm that in addition to the PSR, it was “also relying on the
3553(a) factors.” The court responded, “Yes, indeed … . I have
considered the 3553 factors.”
II. ANALYSIS
Jones contends that the district court gave inadequate con-
sideration to his principal arguments in mitigation, and that
the court insufficiently tailored his supervised-release condi-
tions. We consider each argument in turn.
A. Jones’s Mitigation Arguments
We review de novo whether the district court committed
any procedural error during sentencing. United States v.
Spiller, 732 F.3d 767, 769 (7th Cir. 2013). We held in United
States v. Cunningham that a sentencing judge must address the
defendant’s principal arguments in mitigation unless they
have no legal merit. 429 F.3d 673, 67879 (7th Cir. 2005). We
have applied the Cunningham standard many times. See
No. 14-2787 9
United States v. Castaldi, 743 F.3d 589, 595 (7th Cir. 2014) (col-
lecting cases). As our cases illustrate, that standard “does not
apply mechanically or without regard to context.” United
States v. Poetz, 582 F.3d 835, 839 (7th Cir. 2009). “A short expla-
nation will suffice where the context and record make clear
the reasoning underlying the district court's conclusion.”
United States v. Shroeder, 536 F.3d 746, 755 (7th Cir. 2008). And
we generally require less explanation when the court sen-
tences within the guidelines range. United States v. Curby, 595
F.3d 794, 797 (7th Cir. 2010). So long as the record gives us
confidence that the court meaningfully considered the de-
fendant’s mitigation arguments, “even if implicitly and im-
precisely,” that is enough. United States v. Diekemper, 604 F.3d
345, 355 (7th Cir. 2010) (citing Poetz, 582 F.3d at 839). But a
“rote statement that the judge considered all relevant factors
will not always suffice.” Cunningham, 429 F.3d at 679.
Some of the court’s comments here, taken in isolation, look
fairly rote. The court stated toward the end of both hearings
that it had considered the § 3553(a) factors, but did so without
much explanation and, at the second hearing, only when
prompted by the government. Moreover, when pronouncing
the sentence, the court summarized Jones’s mitigation argu-
ments only briefly and without analysis.
Looking at the record as a whole, however, we are confi-
dent that the court meaningfully considered all three of the
mitigation arguments that Jones highlights on appeal: (1) that
he had “worked hard to put his life on the right track through
education, previous employment, and volunteer work”;
(2) that he registered as a sex offender on multiple occasions
from 1994 until 2010; and (3) that he committed the underly-
ing sexual assaults 26 years ago.
10 No. 14-2787
The facts about Jones’s work and education, his compli-
ance with the registration requirement, and the dates of his
offenses were all laid out in the PSR, which the court reviewed
before both hearings and on which it placed substantial
weight. Jones further argued these points in his sentencing
memorandum, which the court also reviewed. And the par-
ties covered this ground again in considerable detail during
the two hearings. The court was well aware of Jones’s argu-
ments.
Moreover, it is clear that the court considered those argu-
ments in making its decision. The court questioned Jones and
his counsel directly about his work history, though it focused
more on how long Jones had been unemployed. The court also
expressly acknowledged Jones’s claim that he was “a changed
person” who presented no risk. The court asked about Jones’s
past registration as a sex offender, though it found his prior
failure to register more important than his instances of com-
pliance. And the court engaged in the arguments about the
length of time since Jones’s sex offenses, often interrupting
with questions. In short, the court considered Jones’s argu-
ments; it simply found them unpersuasive.
It is true that the court did not directly explain why it
found them unpersuasive. The record would have been
clearer and this appeal more straightforward had the court
done so. But, all the same, we find no procedural error. We
can discern the court’s rationale from its questions, comments,
and decisions, and from its responses to both sides’ lengthy
arguments. The court considered and discussed the most per-
tinent § 3553(a) factors—Jones’s history, characteristics, and
character, as well as the issue of whether he still posed a dan-
ger to society. And it expressly determined that the guidelines
No. 14-2787 11
range was reasonable in this case. In doing so, the court mean-
ingfully considered and rejected, even if “implicitly and im-
precisely,” the facts and arguments that Jones advanced in
support of his sentencing position. Diekemper, 604 F.3d at 355.
B. The Supervised-Release Conditions
18 U.S.C. § 3583 governs the imposition of supervised re-
lease. For certain crimes, supervised release is mandatory; for
others, the sentencing court has discretion to impose it—
within bounds defined by the statute. 18 U.S.C. § 3583(a), (b).
This is a case where supervised release was mandatory for a
period of at least five years. See id. § 3583(k) (requiring super-
vised release for violators of 18 U.S.C. § 2250). In determining
the length and conditions of supervised release (and in decid-
ing whether to impose it at all in cases where it is not manda-
tory), a court must consider the same § 3553(a) factors that
guide sentencing determinations generally. 18 U.S.C.
§ 3583(c). Excluded from that list, however, is § 3553(a)(2)(A),
the need for “just punishment.” Id. For the goal of supervised
release is primarily to prevent recidivism and foster the of-
fender’s re-entry into society; not to punish. See United States
v. Thompson, 777 F.3d 368, 374 (7th Cir. 2015); Siegel, 753 F.3d
at 708.
If a statute mandates supervised release (or, where it does
not, if the court determines supervised release is appropriate),
§ 3583(d) makes certain conditions mandatory. Additional
conditions may also be mandatory by operation of other ap-
plicable statutes, e.g., 18 U.S.C. § 3624(e). But the court has
discretion to impose a wide range of non-mandatory condi-
tions as well. Whether they go by the name “standard,” “dis-
cretionary,” “special,” or something else, non-mandatory con-
ditions must comply with three statutory requirements. They
12 No. 14-2787
must: (1) be “reasonably related” to the defendant’s character-
istics, the nature of the offense, and the goals of supervised
release; (2) “involve[] no greater deprivation of liberty than is
reasonably necessary” to accomplish those goals; and (3) be
consistent with any pertinent sentencing policy statements. 18
U.S.C. § 3583(d)(1)-(3). Furthermore, the court must “give a
reason, consistent with the sentencing factors in section
3553(a),” for its decision to impose the conditions it chooses.
United States v. Bryant, 754 F.3d 443, 445 (7th Cir. 2014); see also
18 U.S.C. § 3553(c).
We review a district court’s imposition of non-mandatory
conditions of supervised release for abuse of discretion,
United States v. Baker, 755 F.3d 515, 523 (7th Cir. 2014), though
we examine de novo claims of procedural error, United States v.
Poulin, 745 F.3d 796, 800 (7th Cir. 2014).
District courts have not always applied the statutory re-
quirements when imposing supervised-release conditions.
See Siegel, 753 F.3d at 708 (identifying “serious problems with
how some district judges are handling discretionary condi-
tions”). So, in a series of recent opinions, including Siegel,
Thompson, and United States v. Kappes, 782 F.3d 828 (7th Cir.
2015), we have emphasized the importance of following
proper procedures and have given additional guidance to
sentencing judges.
We commend the district judge here for employing the
“best practice” we recommended in Kappes: giving the liti-
gants advance notice of the proposed conditions. See id. at 842.
The court ordered a supplemental PSR setting forth the pro-
posed conditions and the rationale for each one, and it solic-
ited additional memoranda from Jones and the government.
It then held a second hearing specifically on the proposed
No. 14-2787 13
conditions. These steps allowed for a full and fair airing of the
issues.
But that was not enough to satisfy the defendant-appellant
Jones. He contends on appeal that the district court imposed
conditions that are not “appropriately tailored” to his partic-
ular offense and characteristics. See Kappes, 782 F.3d at 847–48.
All of the challenged conditions relate back to Jones’s prior sex
offenses in the 1980s, and they assume there is a risk that he
will commit similar offenses again. Preventing such offenses
is certainly one of the purposes of supervised release. See 18
U.S.C. §§ 3583(d)(1), 3553(a)(2)(C). But Jones says the notion
that he poses a present danger is unreasonable.
First of all (the argument goes), he stands convicted of
merely failing to register—not sexually assaulting anyone or
committing a similar crime. The problem with Jones’s argu-
ment is that his conditions do not have to be tied to the spe-
cific offense of conviction, so long as they are warranted by
the defendant’s history and characteristics. See United States v.
Evans, 727 F.3d 730, 735 (7th Cir. 2013).
But do Jones’s history and characteristics in fact warrant
the conditions imposed here? In asking that question, we fo-
cus on the person he was at the time of sentencing—not the
person he was in the distant past, although obviously the two
are related. See id. at 733–34. The trouble for the government
is that Jones committed the underlying sex offenses over 26
years ago. In United States v. Baker, we upheld a treatment con-
dition like Jones’s based on sexual offenses just as old as his.
755 F.3d 515, 527–28 (7th Cir. 2014). But in that case there was
also a more recent incident: several years before sentencing,
Baker had been fired for taking two teenage girls to the back
of a restaurant and asking them sexual questions. Id. at 519;
14 No. 14-2787
see also Evans, 727 F.3d at 735 (observing that the defendant
had “recent and still-untreated sexual offenses”). As far as we
know, there is no similar incident in Jones’s recent past.
Baker and Evans recognized that “one way” to establish
that a defendant with a history of long-ago sex offenses still
poses a danger is to identify a recent instance of sexual mis-
conduct. Evans, 727 F.3d at 733. But that is not the only way.
We think the district court had sufficient reasons, consistent
with § 3553(a), to conclude that Jones still poses a possible
danger, even without evidence of any recent sex offenses.
There is, first of all, the severe nature of his prior sex of-
fenses, which involved the repeated rape of a prepubescent
girl. It was reasonable for the district court to regard a crime
of that nature as indicative of deep-seated problems that are
unlikely simply to vanish with time.
Convicted sex offenders tend to recidivate at a higher-
than-normal rate. See McKune v. Lile, 536 U.S. 24, 33 (2002) (cit-
ing relevant studies). And “[m]ental health professionals
seem to agree that accepting responsibility for past sexual
misconduct is often essential to successful treatment.” Id. at
68 (Stevens, J., dissenting). But Jones refused to participate in
his required treatment program after emerging from prison in
1994. Moreover, he continued to deny that he had a problem
nearly a decade after the offenses. That is not the behavior of
a rehabilitated man.
Nor does his rap sheet inspire confidence that he has cho-
sen the law-abiding path. After his first release from prison,
from 1994 to 1996, he had roughly five criminal convictions
(depending on how one counts separate charges). And after
No. 14-2787 15
his second release, he had seven more. His convictions in-
clude violent crimes in 2000 and 2005. Then, of course, there
are the failures to register that led to this appeal. This criminal
history makes Jones’s statement during the sentencing hear-
ing that he had “done [his] best” since his release from prison
all the more troubling. It suggests either that he is in denial
about his past conduct, or that “his best” is likely to include
future violations of the law.
We also agree with the government’s position that Jones’s
sudden failure to register after years of (mostly) compliance
raised a red flag. Although he says he stopped registering be-
cause he moved to Chicago, the charges in Virginia actually
predate his move by several months. And we see no good rea-
son why the relocation would prevent him from registering.
Moving to a new state and simultaneously falling off the ra-
dar is suspicious behavior. Maybe it was innocent, but it could
just as well have been the first step along the path to reoffend-
ing.
The government thought that was a risk, the court thought
it was a risk, and so did the probation officer, who continued
to recommend imposition of the proposed supervised-release
conditions after listening to the arguments during the two
hearings. The court placed significant reliance on probation’s
assessment. This was not, as Jones charges, abdication of the
court’s responsibility. The court did its own analysis of the
sentencing factors. But it appropriately relied on probation’s
assessment of the danger Jones posed and the needs of the
community.
We conclude that Jones’s supervised-release conditions are
reasonably related to his offense and characteristics and to the
16 No. 14-2787
aims of protection and rehabilitation. Therefore, they satisfy
18 U.S.C. § 3583(d)(1).
But the conditions must also cause “no greater deprivation
of liberty” than necessary. 18 U.S.C. § 3583(d)(2). 4 We think
they meet that standard. Jones’s treatment conditions do not
strictly require him to participate in a sex-offender or mental-
health program. Rather, they authorize the probation office to
have him evaluated to determine whether he needs such
treatment. The restrictions on his contacts with minors are
reasonable too: the one provides exceptions for commercial
and unintentional contact, and the other applies only to vol-
unteer activities. And the final set of conditions—concerning
Jones’s employment and his financial records—allows the
government to monitor his activities. The restrictions they
place on Jones’s liberty are relatively small. Given the risk of
recidivism and the importance of monitoring a convicted sex
offender with a history of failing to register and other crimes,
we find these conditions to be appropriate as well.
III. CONCLUSION
For the foregoing reasons, Jones’s sentence is AFFIRMED.
4 The third requirement, 18 U.S.C. § 3583(d)(3), is not at issue here.