United States v. Reanne Taylor ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 14, 2018
Decided November 26, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-1108
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v. No. 3:06-cr-8
REANNE S. TAYLOR, William M. Conley,
Defendant-Appellant. Judge.
ORDER
Reanne Taylor violated conditions of supervised release, and at her revocation
hearing the district court sentenced her to 24 months’ imprisonment. On appeal she
argues that the district judge interrupted her lawyer repeatedly and, as a result, failed to
consider her mitigating argument that she cooperated with law enforcement. The
sentencing transcript belies Taylor’s contention and shows that the district court did
consider her mitigating argument. Accordingly, we affirm.
No. 18-1108 Page 2
I
Taylor was indicted in 2006 for conspiring to distribute methamphetamine and
for possessing it with the intent to distribute, 21 U.S.C. §§ 841(a)(1), 846. She pleaded
guilty to the conspiracy charge, and the district judge sentenced her to 180 months’
imprisonment and 5 years’ supervised release. United States v. Briesemeister, 273 F.
App’x 534, 536, 538 (7th Cir. 2008). This court affirmed that judgment. See id. at 536.
The district judge later reduced Taylor’s sentence twice. The first time came in
2011, after Taylor cooperated with the United States Attorney’s office for the District of
Minnesota and helped them charge a former associate. At the government’s request, the
judge resentenced Taylor to 135 months’ imprisonment. Then, in 2014, after Taylor had
completed 75% of her sentence with good behavior, she moved for a reduced sentence
under Amendment 782, a retroactive revision to the Sentencing Guidelines that lowered
the base offense levels for most drug crimes. The district court granted her motion and
reduced her sentence a second time.
Taylor served her supervised release term until she was arrested in Minnesota
for check forgery in 2017. At her revocation hearing, the district court refrained from
making specific findings about the Minnesota charge because Taylor’s case was still
pending, but the judge did find that Taylor had violated several other conditions of
supervised release. Specifically, Taylor failed to notify the probation office within 72
hours of being arrested or questioned by law enforcement, left her residence without
the approval of her probation officer, did not provide the probation office with a valid
updated address, and failed to submit monthly supervision reports to her probation
officer. The district court therefore revoked Taylor’s supervised release and sentenced
her to 6 months’ imprisonment, to be followed by 24 months of supervised release.
Almost as soon as Taylor was back on supervised release, she violated yet again.
She failed to participate in substance-abuse treatment or go to a residential treatment
center as required. She also was arrested a second time in Minnesota, this time for
falsely identifying herself to law enforcement.
At the ensuing revocation hearing, the district court noted the policy-statement
range of 5 to 11 months’ reimprisonment, as well as the statutory maximum sentence of
54 months. See USSG §§ 7B1.1(a)(3), 7B1.4; 18 U.S.C. § 3583(h). The government
recommended a sentence within the range suggested by the Chapter 7 policy
statements, with no supervision to follow because Taylor had demonstrated trouble
with compliance and had rejected “multiple opportunities” to address her substance-
No. 18-1108 Page 3
abuse problems. Defense counsel first argued that Taylor should not be held
accountable for failing to go to the residential center because she was put on the wrong
bus, sent to the wrong state, and did not know to whom she should report. And her
failure to follow the conditions was merely a “totally immature decision.”
Defense counsel then raised the mitigating argument at issue in this appeal—that
Taylor contacted unspecified “law enforcement” in Minnesota and cooperated in the
government’s effort to indict other people engaged in drug activity. The district judge
responded that because he was not going to consider the crimes Taylor committed in
Minnesota as a mark against her, he likewise would not consider “some offsetting
facts,” such as the fact that she was cooperating. The judge continued, “I certainly
strongly encourage [cooperation] … but it’s not before me today.” Next, the judge
informed counsel that he would not credit her representation about Taylor’s
cooperation “in another case, until that comes to fruition” and he received
corroboration “from someone.” The judge asked defense counsel if she had anything
further, and, after requesting revocation with time served, counsel confirmed that she
had nothing more.
For her part, Taylor received an opportunity to make a statement to the district
judge but she said that she did not “really have anything to say.” She did offer that she
was going to turn herself in, but “it just didn’t happen.”
The district court then imposed a sentence of 24 months, well above the range of
5 to 11 months under the applicable policy statements. The judge explained that the
sentence was above the suggested reimprisonment range because it was Taylor’s
“second go-around” with violations of supervised release and he did not see that she
had matured in her thoughts and actions. The court explained that the higher sentence
would hold her accountable for her egregious noncompliance with conditions of
release, including absconding. So, too, would the 24-month sentence promote respect
for the law, deter her and like-minded others from similar conduct in the future, and
protect the public.
II
On appeal Taylor contends that the district court failed to consider her mitigating
argument that she cooperated with and assisted law enforcement in Minnesota. She
contends that not only did the district judge “repeatedly interrupt[] counsel’s
presentation of evidence,” but also that the judge said that Taylor’s “cooperation was
not before him today and he would not consider it.” The judge, she argues, violated the
No. 18-1108 Page 4
Federal Rules by denying Taylor an “opportunity to make a statement and present any
information in mitigation.” FED. R. CRIM. P. 32.1(b)(2)(E).
But circuit courts have interpreted Rule 32.1(b)(2)(E) to mean only that district
courts must allow defendants to allocute—not that they must consider mitigating
arguments at revocation hearings. See, e.g., United States v. Thompson, 599 F.3d 595, 599
(7th Cir. 2010); United States v. Fleetwood, 794 F.3d 1004, 1006 (8th Cir. 2015); United States
v. Daniels, 760 F.3d 920, 924 (9th Cir. 2014); United States v. Gonzalez, 529 F.3d 94, 97 (2d
Cir. 2008); United States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008). Indeed, the
Advisory Committee explains that the purpose of Rule 32.1(b)(2)(E) is to “recognize[]
the importance of allocution.” FED. R. CRIM. P. 32.1(b)(2)(E) advisory committee’s note to
2005 amendment. The district court afforded Taylor the opportunity to allocute, and she
did not ask for leniency based on her cooperation, so she cannot rely on the Rule.
While this court has never explicitly said that district judges must consider
mitigating arguments raised by defense counsel during revocation hearings, see United
States v. Williams, 887 F.3d 326, 328 (7th Cir. 2018), it has done so as a matter of course.
See, e.g., id.; United States v. Dill, 799 F.3d 821, 824, 827 (7th Cir. 2015) (affirming district
judge’s rejection of defense counsel’s mitigating argument at revocation hearing). In
Williams, we stated that district judges should not predetermine the appropriate
sentence because they must approach revocation hearings with an open mind and
consider the evidence and arguments presented before imposing punishment. See 887
F.3d at 328 (quoting United States v. Hollins, 847 F.3d 535, 539 (7th Cir. 2017)). The court
then analyzed defense counsel’s contention that the district judge failed to consider his
mitigating argument. See id.
We follow the path highlighted in Williams and consider Taylor’s contention that
the district court failed to consider her mitigating argument. Our doing so does not help
Taylor. First, though the district judge did interrupt defense counsel, Taylor points to
no authority for the proposition that a frustrated judge may not cut off an attorney who
is making a weak argument, especially when there is no doubt that the judge
understands the argument. Moreover, even with the interruptions, defense counsel
made clear to the court that Taylor had contacted law enforcement, cooperated, and
provided substantial assistance in another case. Taylor now asserts that “there was no
evidence that the cooperation she provided was linked to the pending state court case,”
which we take to mean that she might not have had a selfish motive for cooperating.
But Taylor, too, has no evidence either way, and she did not make that argument in the
No. 18-1108 Page 5
district court. Indeed, the district judge asked defense counsel three times if there was
anything that she wished to add, and counsel said no.
Second, though the judge said that Taylor’s cooperation was “not a concern” of
his, the transcript reveals that the judge did consider her mitigating argument before
rejecting it. A district court “is not obliged to engage in a lengthy discussion of every
argument for leniency that the defendant raises.” United States v. Patrick, 707 F.3d 815,
818 (7th Cir. 2013). Here, the judge’s explanation for rejecting Taylor’s argument was
sufficient. The judge stated that her alleged cooperation was outweighed by her other
bad acts, principally absconding and failing to report to probation officers. Further, the
judge explained that he did not feel comfortable giving her credit for cooperation
because he had decided not to consider the aggravating fact that she had also
committed crimes in Minnesota. The record, in short, does not support any view that
the district court “passed over” Taylor’s mitigating argument in silence. United States v.
Villegas-Miranda, 579 F.3d 798, 802 (7th Cir. 2009). The district judge considered the
argument but decided to reject it.
True, the judge also said that he would not further consider Taylor’s argument
because, other than counsel’s representation, there was no evidence that Taylor had
cooperated. Taylor asserts that this runs counter to 18 U.S.C. § 3661, which requires
district judges to place “no limitation … on the information concerning the background,
character, and conduct of a person.” But there is a limit: a judge may consider
information only if it has “sufficient indicia of reliability to support its probable
accuracy.” United States v. Guajardo-Martinez, 635 F.3d 1056, 1059–60 (7th Cir. 2011)
(citation omitted). Defense counsel said that the government could confirm that Taylor
contacted the authorities in Minnesota. Yet the government did not confirm that she
did, let alone that she “gave substantial assistance,” as Taylor claimed. Moreover, there
is no evidence that defense counsel ever asked the government to obtain corroborating
information before or after positing at the sentencing hearing that the prosecutor can
confirm the cooperation. Counsel simply told the judge, without corroboration or detail,
that Taylor was cooperating with unnamed officials in Minnesota during an unspecified
time about an unidentified case. The district court did not ignore a “solid basis” to
accept Taylor’s argument for leniency. Patrick, 707 F.3d at 819.
On this record, we AFFIRM.