United States v. Horatio Sumrall , 617 F. App'x 586 ( 2015 )

NONPRECEDENTIAL DISPOSITION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 June 10, 2015
Decided July 15, 2015
Before
DANIEL A. MANION, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 14-2732
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 3:92-CR-30004-001-MJR
HORATIO A. SUMRALL, Michael J. Reagan,
Defendant-Appellant. Chief Judge.
ORDER
The district court revoked Horatio Sumrall’s supervised release and ordered him
to serve an additional 36 months in prison. In this appeal Sumrall argues that the court,
in selecting a term of that length, relied too heavily on 18 U.S.C. § 3553(a)(2)(A), which
directs a sentencing court to consider the “need for the sentence” to “reflect the
seriousness of the offense, to promote respect for the law, and to provide just
punishment.” Section 3553(a)(2)(A) is not among the statutory factors applicable to
revocations of supervised release, though we have approved its consideration during
revocation proceedings. The district court did not place too much reliance on this factor,
so we affirm the judgment.
No. 14-2732 Page 2
Sumrall ran a drug ring in East St. Louis, Illinois, selling powder and crack
cocaine. He was convicted in 1992 of engaging in a continuing criminal enterprise, 21
U.S.C. § 848, conspiring to distribute cocaine, id. §§ 846, 841(a)(1), and using and
carrying a firearm during and in relation to a drug trafficking offense, 18 U.S.C. § 924(c).
As part of a plea agreement, he cooperated with the government after sentencing, and
his original prison terms totaling 420 months later were reduced to 180 months. See FED.
R. CRIM. P. 35(b).
Sumrall’s sentence included concurrent terms of supervised release, the longest
being 10 years on the conspiracy count. He was released from prison in March 2005 and
soon began racking up violations: 5 in 2005, 7 in 2006, 5 in 2007, 2 in 2008, 4 in 2009, 1 in
2010, 2 in 2011, 3 in 2012, 2 in 2013, and 3 in 2014, for a total of 34 violations. In
November 2013, about 17 months before Sumrall’s 10-year term of supervised release
would expire, his probation officer petitioned for revocation (that petition was amended
twice to include additional violations). By the time of Sumrall’s revocation hearing in
July 2014, he had accumulated Grade B violations for committing new crimes (among
them multiple false statements and thefts, including one theft involving a motor vehicle
and another for which he was serving time in state prison), as well as Grade C violations
for, among other infractions, committing traffic offenses, leaving the judicial district
without permission, failing to submit monthly reports to his probation officer, and
failing to notify his probation officer of contacts with law-enforcement authorities.
Sumrall admitted every violation. As a result he faced a reimprisonment range of 18 to
24 months under the Chapter 7 policy statements applicable to revocations of supervised
release. See U.S.S.G. § 7B1.4.
The government argued for an above-range term of 36 months, noting that
Sumrall had admitted committing multiple thefts, some of them after being charged
with other thefts and released on bond. One of those theft charges, the government said,
involved 24 tons of stolen metal that was sold to a scrap yard.
Sumrall’s lawyer countered that a prison term at the low end of the range should
be sufficient because, according to counsel, Sumrall had demonstrated acceptance of
responsibility by admitting all of the violations. One of the theft charges, counsel
asserted, was still pending in state court because the evidence was weak and prosecutors
didn’t want to go to trial. And it was significant, counsel added, that Sumrall had not
been in the drug business or used guns since his 1992 convictions. The lawyer explained
that Sumrall was a magnet for stolen property because, with only a high school
education, he works in the junk and salvage business. He said that Sumrall has a
No. 14-2732 Page 3
supportive wife and daughters and is basically a “pretty good guy,” though one who
“doesn’t follow the rules” and “is probably mildly sociopathic.”
Sumrall personally addressed the court and asked that his federal prison term run
concurrently with his undischarged state sentence so that he could return to his family.
The district judge instead ran the 36-month prison term consecutively to
Sumrall’s state sentence. Before announcing that term, the judge explained that he
would apply the factors in § 3553(a), including the need for the punishment “to reflect
the seriousness of the offense, promote respect for the law and provide just
punishment.” This was a situation, the judge said, where the additional imprisonment
should be “driven by deterrence and punishment insofar as the 3553 factors are
concerned, as well as promoting respect for the law.” The judge noted the high number
of violations and emphasized that, while some of them were dated and others technical,
Sumrall still had committed three felonies despite the probation office’s best efforts to
work with him. Sumrall had steered clear of drugs and guns, the court agreed, yet he
had “reinvented” himself as a thief. His thefts, the court reasoned, were serious even if
nonviolent and, to the extent committed while on bond, constituted “double thumbing
of the nose to the Court.” The judge gauged the likelihood of recidivism as high and
sought to deter Sumrall and protect society. As a final thought, the judge informed
Sumrall that “the seriousness of the grade B violations” had driven the choice of a term
above the range.
Sumrall’s single argument on appeal is that the district court put too much weight
on the need for his punishment to reflect the seriousness of his violations, to promote
respect for the law, and to provide for just punishment. All of these concerns are found
in § 3553(a)(2)(A), which applies at a sentencing hearing. But Sumrall was not being
sentenced, and unlike most other subsections of § 3553(a), subsection (a)(2)(A) is not
expressly incorporated into 18 U.S.C. § 3583(e), which governs revocations of supervised
release. See United States v. Neal, 512 F.3d 427, 438 (7th Cir. 2008); United States v. Carter,
408 F.3d 852, 854 (7th Cir. 2005). That said, Sumrall necessarily concedes this court’s
position that subsection (a)(2)(A), even though not enumerated in § 3583(e), still can be
considered by a district court when revoking a term of supervised release. See United
States v. Phillips, No. 14-1354, 2015 WL 3937527, at *2 (7th Cir. June 26, 2015); United States
v. Clay, 752 F.3d 1106, 1107 (7th Cir. 2014); accord United States v. Webb, 738 F.3d 638, 641–
42 (4th Cir. 2013); United States v. Young, 634 F.3d 233, 241 (3d Cir. 2011); United States v.
Lewis, 498 F.3d 393, 400 (6th Cir. 2007). Sumrall insists, however, that § 3553(a)(2)(A)
cannot be the primary justification for a term of reimprisonment. As indicia that the
No. 14-2732 Page 4
district judge relied too heavily on § 3553(a)(2)(A), Sumrall points to the judge’s
references to (1) the need for “incremental punishment” as justification for running the
federal term consecutively to his state sentence, (2) the necessity of promoting respect for
the law given Sumrall’s commission of several offenses while on bond, and (3) the
seriousness of the Grade B violations motivating the above-range term of
reimprisonment.
The district court’s statements are not problematic. First, there is no reason to
think that the court’s reference to “incremental punishment” concerned § 3553(a)(2)(A),
since, as a matter of Sentencing Commission policy, “[a]ny term of imprisonment
imposed on the revocation of probation or supervised release shall be ordered to be
served consecutively to any sentence of imprisonment that the defendant is serving,
whether or not the sentence of imprisonment being served resulted from the conduct
that is the basis of the revocation.” U.S.S.G. § 7B1.3(f) & cmt. n.4. A consecutive term, as
far as the Sentencing Commission is concerned, should be the norm, making
§ 3553(a)(2)(A) irrelevant. See United States v. Taylor, 628 F.3d 420, 423–24 (7th Cir. 2010);
United States v. Huusko, 275 F.3d 600, 603 (7th Cir. 2001). Second, § 3553(a)(2)(A) is not the
only subsection of that statute which gives a district court reason to consider, when
revoking supervised release, the seriousness of the violations as well as the need to
promote respect for the law. As we explained in Clay, those considerations are just as
important when a district court considers the “nature” of the violations, which the court,
to comply with § 3583(e) and § 3553(a)(1), must evaluate. See Clay, 752 F.3d at 1108;
Young, 634 F.3d at 241; Lewis, 498 F.3d at 400. Moreover, the district court also relied
heavily on the need for deterrence, see 18 U.S.C. § 3553(a)(2)(B), noting that Sumrall
could not conform his conduct to the norms of civilized society and needed “to be sat on
the bench.” A quick glance at the list of violations makes this evident.
Accordingly, the judgment is AFFIRMED.