United States v. Todd Jones , 774 F.3d 399 ( 2014 )

n the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3673
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TODD JONES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 07-cr-10023-001 — Michael M. Mihm, Judge.
____________________
ARGUED SEPTEMBER 19, 2014 — DECIDED DECEMBER 16, 2014
____________________
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. After being charged with conspir-
acy to distribute fifty or more grams of crack cocaine and
three other drug charges, Todd Jones caught some lucky
breaks. He pleaded guilty to the conspiracy and, in return,
the district court dismissed the remaining charges on the
government’s motion. Jones qualified for the safety valve
provision, and then became the beneficiary of a retroactive
amendment to the United States Sentencing Guidelines
2 No. 13-3673
which ultimately led to a forty-six month sentence, followed
by five years of supervised release. The conditions of super-
vised release required, among other things, that Jones refrain
from any non-prescribed use of controlled substances, and
submit a truthful written report to his probation officer with-
in the first five days of each month. For a man originally fac-
ing a statutory minimum of 10 years’ imprisonment, Jones’s
3.8 year sentence would seem to be a gift.
Unfortunately, Jones looked this gift horse in the mouth.
Six months after he completed his sentence of incarceration
and began his supervised release, in January 2011, he was
caught driving on a suspended license and charged with ob-
structing a police officer. As a result, the court modified his
conditions of supervised release to require twenty-five hours
of community service and completion of a cognitive behav-
ioral therapy program. Jones accomplished both, but could
not seem to keep himself out of trouble. In February 2012, he
allegedly resisted an officer during a traffic stop for speed-
ing; in October 2012, he was charged with aggravated bat-
tery relating to a bar fight; and in June 2013, he was charged
with battery relating to another fight. Each time he eluded
consequence either because the state filed no charges or de-
clined to prosecute at a complaining witness’s request.
At the same time, Jones was having trouble complying
with other aspects of the requirements of his supervised re-
lease. After his release from prison he moved in with his
girlfriend and mother of his child, but on December 27, 2012,
she called Jones’s probation officer and told him that she
wanted Jones to move out immediately. The probation of-
ficer directed Jones to report to the probation office in Rock
Island the next day, but he failed to do so. For the next two
weeks he lived with a friend in Galesburg, Illinois, until she
forced him to leave because she did not want her address
registered with the probation office. On January 9, he moved
No. 13-3673 3
to another friend’s home, but by April 2013, he was again
homeless. That situation continued into May 2013, but he
did not report his homelessness to his probation office as he
feared the officer would “ride him” and direct him to stay in
a shelter, which he did not want to do. Jones failed to file his
monthly probation reports for April, May, June, or July 2013.
He also failed to report to the probation office as directed on
December 28, 2012.
After the battery charges against him were filed in June,
the probation officer tried to find Jones, but remained un-
successful until August 2013, when he located Jones at his
own apartment in Galesburg. Having been found, Jones re-
ported for a probation office visit on August 14, where his
urine tested positive for marijuana. Only one other of his fif-
ty-three timely urine samples tested positive for a controlled
substance—the one taken on September 14, 2011—but twen-
ty-four more tests were submitted late, and, of course, he
was unavailable to the probation office for testing for four
months in mid-2013.
On August 23, 2013, the probation office filed a petition
to revoke Jones’s supervised released based on seven alleged
violations of the conditions of his release: two incidents of
failing to report to the probation office, twice resisting a
peace officer, aggravated battery, battery, and possession of
marijuana. Jones agreed to admit to the possession of mari-
juana and two incidents of failing to report, in exchange for
an agreement by the government to withdraw the remaining
allegations.
The violation report prepared by the probation officer for
the court noted that upon revocation, the court could impose
a prison sentence up to the maximum sentence permitted by
18 U.S.C. § 3583(e)(3), which is three years for a Grade B vio-
lation. The Sentencing Guidelines recommended four to ten
months’ imprisonment for a Grade B violation by a Category
4 No. 13-3673
I offender. U.S.S.G. § 7B1.4 and § 7B1.1. The report also not-
ed that because the bottom of that range was between one
and six months, the Guidelines stated that the minimum
four-month sentence could be satisfied by either (a) a sen-
tence of imprisonment or (b) a sentence of imprisonment
that included a term of supervised release with a condition
that substitutes community confinement or home detention
for any portion of the minimum term. Id. § 7B1.3(c)(1). Pur-
suant to 18 U.S.C. § 3583(h), the court could also impose an
additional term of supervised release up to the term that the
statute for the original offense authorized, less any term of
imprisonment imposed upon revocation. The statute for the
original offense authorized a life term of both imprisonment
and supervised release. 21 U.S.C. § 841(b)(1)(A)(iii).
At the sentencing, the prosecutor highlighted Jones’s
unwillingness to submit to authority and to comply with the
conditions of his supervision. Jones’s attorney emphasized
the relatively minor nature of the violations and the fact that
Jones was recovering from back surgery, had established a
stable residence, had committed no violations while on bond
awaiting the revocation sentencing, had successfully com-
pleted a welding program, a substance-abuse evaluation
(where he was found to not have a substance abuse prob-
lem), and a cognitive behavioral therapy program. Jones’s
attorney asked the court to substitute home confinement for
any period of imprisonment, but did not make any requests
nor any mention whatsoever regarding additional super-
vised release.
The court, after accepting his guilty pleas and finding
him guilty of the supervised release violations, announced a
sentence of four months—the bottom of the Guidelines
range, followed by a thirty-six-month period of supervised
release. The court stated, “It looks to me from reading this
[presentence report] that we did not have the defendant’s
No. 13-3673 5
full attention, especially after he got his welding degree.
And then going for months without filing a report indicates
again, I think, what his attitude is here.” (Tr. 11/26/13, p. 18-
19). The court then advised Jones to contact his probation
officer when issues, like loss of housing, arose.
Jones addressed the court stating that he thought, by
pleading guilty, that he would not have continued super-
vised release after his sentence. He noted that he had been
on probation for forty-one months and thought another thir-
ty-six was excessive. The court responded by saying:
Well, that’s something we always think about,
but in your case, I think it’s necessary to put
you back on supervised release…“[I]f you get
into that period of supervision for a year, year
and a half and you’re still okay, you’re not
committing violations, then I would consider
the possibility of early discharge.
Id. p. 22-23.
Jones completed the imprisonment portion of his
sentence on May 30, 2014, but on appeal argues that
the term of supervised release and imprisonment
were plainly unreasonable.
Our review of a sentence for violating a term of super-
vised release is highly deferential, and we will uphold that
term unless it is “plainly unreasonable.” See U.S. v. Kizeart,
505 F.3d 672, 674 (7th Cir. 2007).
Jones argues that the court violated his due process rights
under the Fourteenth Amendment by failing to consider al-
ternatives to incarceration. Jones really means to invoke the
due process clause of the Fifth Amendment which applies to
the federal government. In either case, however, the Su-
preme Court has “considered whether the Due Process
6 No. 13-3673
Clause of the Fourteenth Amendment generally requires a
sentencing court to indicate that it has considered alterna-
tives to incarceration before revoking probation,” and con-
cluded that it does not. Black v. Romano, 471 U.S. 606, 607, 613
(1985). The defendants cite a string of cases from the 1970s
and 1980s, including the Eighth Circuit’s appellate decision
in Black v. Romano, 735 F.2d 319 (8th Cir. 1984), but that very
case was overturned by the Supreme Court (as we cited
above), which also rejected not only the reasoning in Black
itself, but also made clear that the holdings in the two other
two cases on which Jones relies—Gagnon v. Scarpelli, 411 U.S.
778 (1973) and Morrissey v. Brewer, 408 U.S. 471 (1972), do not
compel a court to consider alternatives to incarceration in
probation revocation proceedings.
Jones received all the process due him at his revocation
proceedings. He was given adequate notice, represented at
all times, appeared at the hearing, and was afforded an op-
portunity to make a statement and present information in
mitigation. See Fed. R. Civ. P. 32.1, and U.S. v. LeBlanc,
175 F.3d 511, 515 (7th Cir. 1999) (Rule 32.1 largely codi-
fied Morrissey v. Brewer, 408 U.S. 471, 489 (1972), which de-
fined Fifth Amendment due process rights, including a lim-
ited confrontation right, in parole revocation hearings).
As the government points out, the district court could not
have abused its discretion, much less plainly erred, when it
revoked supervised release after Jones admitted that he pos-
sessed marijuana, as such a revocation is mandatory under
18 U.S.C. § 3583(g)(1) (“If the defendant possesses a con-
trolled substance in violation of [a condition of supervised
release]…the court shall revoke the term of supervised re-
lease and require the defendant to serve a term of impris-
onment. …”) U.S. v. Hondras, 296 F.3d 601, 602 (7th Cir.
2002).
No. 13-3673 7
Jones also claims that his sentence was plainly unreason-
able because the district court did not give appropriate
weight to the policy statements and sentencing factors in 18
U.S.C. § 3553. Both the term of incarceration and the term of
supervised release were within the range suggested by the
Guidelines and thus are presumed to be reasonable on ap-
peal. Gall v. U.S., 552 U.S. 38, 51 (2007); U.S. v. Horton,
770 F.3d 582, 585 (7th Cir. 2014). Moreover, his assertion that
the court failed to consider the Chapter 7 policy statements
and § 3553 factors is both generic and unsupported and also
factually incorrect.
Jones never states which policy factors the court should
have considered other than to say that the district court
should have given appropriate weight to U.S.S.G. Ch. 7 poli-
cy statements. That is the beginning and end of his discus-
sion of the matter. For this reason, we deem the argument
waived (U.S. v. Bryant, 750 F.3d 642, 651 (7th Cir. 2014)). But
even were it not, the court did indeed consider Guidelines
Chapter 7 when sentencing Jones, specifically, chapter 7B1.4.
The court reviewed the Sentencing Report which turned to
the Revocation Table in § 7B1.4 of the policy statements to
calculate that Jones violation qualified as a Grade B violation
and that he had a criminal history of Category I which led to
a Guideline range of four to ten months, and supervised re-
lease up to life less any term of imprisonment imposed on
revocation. (Tr. 11/26/13, p.5-6). After announcing the
range, the court selected a sentence at “the bottom of the
guideline range [as] the proper place; that’s four months.”
(Tr. 11/26/13, p.20). The court also considered substituting
community confinement for a term of imprisonment, first
listening to Jones’s lengthy position that
home confinement in this situation would be
appropriate because there is now a stable resi-
dence that he has that he could be confined to.
8 No. 13-3673
Electronic monitoring can be put in place, and
he can continue to look for a job and partici-
pate in physical rehabilitation. To order him to
jail or to prison at this point, Your Honor,
would really defeat the purpose, which is to
have stable housing to get on the right track,
and to be able to comply with all the condi-
tions of supervision which he has been doing
since he was released on bond.
(Tr. 11/26/13, pp.17-18). Having heard the argument, the
court then queried the government about its “position on
home confinement here.” Id. p.18. The government respond-
ed by saying that it was asking for a sentence of imprison-
ment within the range. Id.
As for the § 3553 sentencing factors, circuits are split as to
whether a district court need consider § 3553 factors when,
as here, the revocation is mandatory under § 3583. Compare,
U.S. v. Thornhill, 759 F.3d 299, 311 (3d Cir. 2014) (stating that,
“Meaningful consideration of the § 3553(a) factors is also re-
quired in revocation proceedings.”) with U.S. v. Garza,
706 F.3d 655, 658 (5th Cir. 2013); U.S. v. Giddings, 37 F.3d
1091, 1095 (5th Cir. 1994) (holding that “when revocation…is
mandatory under 18 U.S.C. § 3583(g), the statute does not
require consideration of § 3553(a) factors.”). We need not de-
termine where our Circuit stands, as the district court did
indeed consider § 3553 factors.
A court need not consider the § 3553 factors in check-list
form. The district court judge need only form an adequate
statement of her reasons, consistent with section 3553(a), for
thinking the sentence that she has selected is indeed appro-
priate for the particular defendant. U.S. v. Pollock, 757 F.3d
582, 591 (7th Cir. 2014). The explanation must be sufficient to
allow a court of appeals to assess the reasonableness of the
No. 13-3673 9
sentence imposed. U.S. v. Conaway, 713 F.3d 897, 903 (7th
Cir. 2013).
In this case, the court noted that Jones’s multiple viola-
tions indicated that the court “did not have the defendant’s
full attention, especially after he got his welding degree.”
And the court also noted that Jones’s failure to report for
four months indicated that his attitude was not respectful of
the process. (Tr. 11/26/13, p.18-19). Furthermore, the court’s
statement that it might discharge the second half of the su-
pervision period if Jones exhibited improved behavior,
demonstrates that the court was indeed thinking about
§ 3553 factors such as the characteristics of the defendant,
deterrence, the need to protect the public from further
crimes, and the need to promote respect for law and provide
just punishment. See 18 U.S.C. § 3553.
The amount of justification that an appeals court will re-
quire of a district court depends on how far the judge’s sen-
tence departs from the Guidelines sentence. Gall v. U.S.,
552 U.S. 38, 51 (2007); Conaway, 713 F.3d at 903. In this case,
the four month imprisonment sentence was the lowest sen-
tence possible within the Guideline range. The supervised
release portion of the sentence was also well-within the
available range which allowed for lifetime supervision. Giv-
en the fact that both the sentence and the supervised re-
leased were within the Guidelines range (and indeed, on the
very low end), the judge’s justification for the sentence was
sufficient.
Jones has never directed this court “to anything specific
that the district court failed to consider or take into account.”
Pollock, 757 F.3d at 591. The crux of his argument is only that
his violations were minor, and that “some of the things that
he’s done are good,” (Tr. 11/26/13, p.16) and that he is
therefore not deserving of even the lowest end sentence and
the term of supervised release imposed. But this is just the
10 No. 13-3673
type of discretionary decision that belongs to a district court
judge. Despite being given a second chance by his low-end
sentence on the merits, Jones could not keep himself in line
while on supervised release. The district court felt that the
low-end sentence of four months imprisonment followed by
thirty-six months of supervised release would get Jones’s at-
tention and keep him on the straight and narrow. We see no
reason to disagree.
AFFIRMED.