United States v. Thomas M. Smith , 929 F.3d 828 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 18‐3265
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
THOMAS M. SMITH,
Defendant‐Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:11‐cr‐30013‐DRH‐1 — David R. Herndon, Judge.
ARGUED MAY 28, 2019 — DECIDED JULY 11, 2019
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
BAUER, Circuit Judge. Within three months of being placed
on a 20‐year term of supervised release, Thomas “Lizzie”
2 No. 18‐3265
Smith1 violated the requirements of her supervision. The
district court revoked Smith’s supervised release, and sen‐
tenced her to two years’ imprisonment without any further
supervision to follow. Smith now appeals that order. For the
reasons that follow, we affirm the district court’s revocation
sentence.
I. BACKGROUND
Smith pleaded guilty to one count of receipt of child
pornography and was sentenced to 90 months of imprison‐
ment, 20 years of supervised release, a $600 fine, and a $100
special assessment. Smith’s term of supervised release began
on November 20, 2017.
On August 29, 2018, Smith’s probation officer, Kevin
Rayman, filed a petition for warrant or summons for offender
under supervision, stating that Smith (1) failed to participate in
sex offender treatment, (2) failed to participate in mental health
treatment, (3) failed to comply with location monitoring, and
(4) failed to make scheduled payments of fines.2
The district court held a hearing on the petition on
October 18, 2018. Rayman testified that he referred Smith to
Alternatives Counseling in Glen Carbon for sex offender
treatment. Smith quit the program after a few weeks, believing
she did not need treatment. Rayman then referred Smith to
1
Thomas Smith began identifying as a female and chose the name “Lizzie.”
We use “Smith” and feminine pronouns consistent with the transcript of the
district court’s sentencing hearing.
2
The allegation that Smith failed to pay the fines was withdrawn.
No. 18‐3265 3
Choices Counseling for sex offender treatment. Smith was
discharged by Choices Counseling for reasons including
noncompliant behavior, safety concerns, dishonesty about past
behavior, and refusing to participate in polygraph examina‐
tions. Smith was also referred for mental health treatment, but
missed multiple meetings.
Rayman also testified that on January 26, 2018, as a result
of this difficulty in establishing regular sex offender and
mental health services, location monitoring and a nightly
curfew were added to the conditions of Smith’s supervised
release. On February 4, 2018, Smith violated her curfew and
left a four‐minute long profanity‐filled voice mail for Rayman,
threatening to sue U.S. Probation and demanding to be taken
off location monitoring. Rayman subsequently concluded that
Smith was not a good candidate for continued supervision,
because she was resistant to treatment, dishonest, and in denial
about her child pornography conviction.
The advisory Sentencing Guidelines imprisonment range
was 3 to 9 months with a maximum of 2 years. The govern‐
ment sought a sentence of one year and one day due to Smith’s
dishonesty and refusal to cooperate. The district court refer‐
enced Smith’s manipulative behavior, lies, and refusal to
participate in treatment or follow the court’s orders. It also
discussed the seriousness of the child pornography offense,
Smith’s history, the need to protect the public, and the need to
promote respect for the law. The court noted that “[t]his is an
extraordinary case, extraordinary dissidence, extraordinary
deliberate efforts to violate the Court’s order, extraordinary in
[Smith’s] effort to avoid treatment.” The court gave Smith a
4 No. 18‐3265
24‐month sentence and ordered that no supervised release
would follow. Smith then filed her notice of appeal.
II. ANALYSIS
A violation of supervised release is “a breach of the trust
placed in a defendant by the original sentencing court.” United
States v. McClanahan, 136 F.3d 1146, 1150 (7th Cir. 1998). A
revocation sentence is “subject to review under the plainly
unreasonable standard because no guideline establishes a
mandatory range of such a sentence.” Id. at 1149 (internal
quotation marks omitted) (quoting United States v. Hale, 107
F.3d 526, 529 (7th Cir. 1997)). Chapter 7, Part B of the Sentenc‐
ing Guidelines, which contains the advisory revocation
sentence table, is a policy statement and “not a guideline,
binding on the sentencing judge.” United States v. Doss, 79 F.3d
76, 78 (7th Cir. 1996).
Smith argues the 24‐month sentence was unreasonable
because the district court failed to treat her mental health
problems as a mitigating factor. Smith also argues the district
court failed to fully consider the factors under § 3553(e) and
put undue emphasis on her defiant behavior.
The district court used the advisory Sentencing Guidelines
as a starting point, but determined that a 3 to 9‐month sentence
“doesn’t get this case right” stating that Smith’s behavior had
“a great deal of vitriol and [was] some of the most defiant
behavior that I’ve seen in 20 years on the federal bench.” The
court discussed Smith’s psychological issues, which included
PTSD, narcissism, and pedophilia. The court found that “one
could probably argue that any one or at least a combination of
her psychiatric diagnoses are a clear answer for why she
No. 18‐3265 5
conducts herself the way she does,” but concluded that Smith
was attempting to escape responsibility for her actions.
The court noted Smith pleaded guilty to receipt of child
pornography and had a clear need for treatment. Smith,
however, would not willingly comply with any treatment
program or even accept responsibility for the acts which she
had pleaded guilty to. The court stated that “this character that
[Smith] has … that she takes on with respect to her defiance
and her right to do what she wants when she wants is incredi‐
bly harmful, and harmful to the community.” The court noted
the sentence was driven by a need to protect the public, and
the ideal sentence would help her understand that “the kind of
behavior she engaged in was simply not acceptable, it’s not
appropriate, it’s dangerous, it’s devastating to the community,
it holds the law and the Court in low regard … .”
The court concluded that supervision would ordinarily be
helpful but would ultimately be futile here because there was
not “any one or team of probation officers that could possibly
keep Ms. Smith properly supervised.” Then looking to the
statute for guidance and considering the extreme nature of the
case, and the fact that Smith spent such a short period of time
on supervision, the court sentenced Smith to a sentence of 24
months’ imprisonment while removing any further burden of
her original sentence of 20 years of supervised release.
The above shows that the court gave a sufficient explana‐
tion of the factors it considered in determining the appropriate
sentence for Smith. Furthermore, the sentence is supported by
compelling justifications. Smith was manipulative, dishonest,
breached the trust of the court, disregarded the rule of law, and
6 No. 18‐3265
proved unwilling to seek the treatment the original sentencing
court found necessary. As such the 24‐month sentence was not
plainly unreasonable, and is hereby AFFIRMED.