United States v. Christopher Boultinghouse , 784 F.3d 1163 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 14-2764
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTOPHER BOULTINGHOUSE,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:06-cr-00007-RLY/WGH— Richard L. Young, Chief Judge.
ARGUED FEBRUARY 9, 2015 — DECIDED MAY 4, 2015
Before ROVNER, SYKES, and WOOD,* Circuit Judges.
ROVNER, Circuit Judge. At the conclusion of a hearing at
which defendant-appellant Christopher Boultinghouse waived
his right to representation by counsel, the district court found
that Boultinghouse had violated multiple conditions of his
*
The Honorable Andrea R. Wood, of the Northern District of Illinois,
sitting by designation.
2 No. 14-2764
supervised release, revoked that release, and ordered him to
serve an additional prison term of 24 months. Boultinghouse
appeals, contending that the district court did not do enough
to ensure that his decision to proceed without the assistance of
counsel at the revocation hearing was sufficiently informed to
constitute a knowing waiver, and that the court failed to
articulate reasons for the sentence it imposed when it revoked
his supervised release. We conclude that the totality of the
circumstances, including the district court’s colloquy with
Boultinghouse regarding his decision to proceed pro se,
demonstrates that his waiver of representation by counsel was
a knowing and intelligent decision as well as a voluntary one.
As to the sentence, however, because the court gave no reasons
for the term of imprisonment it imposed, we cannot be sure
that it considered the statutory sentencing factors as it was
required to do; we are therefore compelled to vacate the
judgment and remand for resentencing.
I.
In 2006, a grand jury indicted Boultinghouse on two counts
of unlawfully possessing a firearm in interstate commerce after
previously having been convicted of a felony offense. See 18
U.S.C. § 922(g)(1). Boultinghouse pleaded guilty to both counts
of the indictment, and the district court ordered him to serve
a prison term of 77 months, to be followed by a three-year term
of supervised release. By October of 2011, Boultinghouse had
completed his prison term and commenced his supervised
release.
On July 21, 2014, Boultinghouse’s probation officer filed a
petition with the district court asking that Boultinghouse be
No. 14-2764 3
arrested and that the court revoke his supervised release. The
petition alleged that Boultinghouse had failed multiple drug
tests in April and May, 2014. In addition, on June 9, 2014,
sheriff’s deputies in Posey County, Indiana, had arrested
Boultinghouse and charged him with the misdemeanor
offenses of disorderly conduct and intimidation; but
Boultinghouse had not reported the arrest to his probation
officer as required. Based on these facts, the officer contended
that Boultinghouse had committed five separate violations of
the conditions of his supervised release, namely: (1) commit-
ting another criminal offense, (2) using a controlled substance,
(3) frequenting a place where controlled substances are
illegally sold, used, distributed, or administered, (4) unlawfully
possessing a controlled substance, and (5) failing to promptly
inform his probation officer that he had been arrested.
Boultinghouse was arrested pursuant to a bench warrant
and appeared before the court on July 25, 2014, without
counsel. The court advised Boultinghouse that he was entitled
to representation and asked him if he wanted counsel.
Boultinghouse replied that he did not. “I can defend myself,”
he told the court. R. 21 at 5. The following exchange between
the court and Boultinghouse ensued:
THE COURT: All right. You understand
that you would be held to the
same standards that an attor-
ney would be held to?
THE DEFENDANT: Sure.
4 No. 14-2764
THE COURT: Okay. All right. I’ve got to
tell you, though, that it’s not
a wise decision you’re mak-
ing here.
THE DEFENDANT: I’m well aware of the fool-
for-a-client deal, Your Honor,
but this is going to be pretty
simple.
R. 21 at 5. The court proceeded to review with Boultinghouse
each of the charged violations of his supervised release to
make sure that he understood them; Boultinghouse, after
asking clarifying questions about several of the charges,
indicated that he did. The court then advised Boultinghouse
that he had a right to a hearing on the petition for revocation,
assuming that he denied the allegations contained therein.
Boultinghouse responded that he did deny the allegations
“categorically,” and he further advised the court that he
“would like a hearing as soon as possible.” R. 21 at 10. After
the government informed the court that it was prepared to
proceed immediately as to all but the first charged violation
(commission of another offense), the court decided to proceed
with the hearing forthwith.
Early on in that hearing, the court noted for the record that
it had summoned an experienced criminal defense attorney to
the courtroom to serve as stand-by counsel for Boultinghouse.
The court urged Boultinghouse to consult with that attorney as
he wished. Boultinghouse acknowledged the court’s invitation.
The government called Boultinghouse’s probation officer,
Robert DeCarli, as its first and only witness. After confirming
No. 14-2764 5
that he had reviewed with Boultinghouse at the commence-
ment of his supervised release each of the conditions of release
underlying the charged violations, DeCarli recounted the facts
underlying the revocation petition.
With respect to the unreported arrest, DeCarli testified that
he had eventually received a report from the Federal Bureau of
Investigation’s National Crime Information Center indicating
that Boultinghouse had been arrested in Posey County,
Indiana, on June 9, 2014, for disorderly conduct and intimida-
tion. Boultinghouse had not disclosed this arrest to him within
72 hours, as the conditions of his supervised release required
him to do, nor had he mentioned it at an in-person meeting
with DeCarli that took place on June 18, 2014.
DeCarli indicated that the drug use, possession, and
frequenting charges were based on a succession of positive
urinalysis results from Boultinghouse in April, May, and June
2014. DeCarli had personally supervised each of the urine
“drops” that Boultinghouse submitted on these occasions. He
explained that in each instance, he followed the same proce-
dure employed with respect to the collection of all such
specimens for testing. DeCarli would prepare a standard chain
of custody form, have Boultinghouse complete the donor
certification and consent portion of the form, write
Boultinghouse’s initials on a seal used to secure the specimen,
and then place his own signature on the seal. After the urine
sample was collected, Boultinghouse would affix the seal to the
container and drop it into an evidence bag, which was then
sealed in front of him.
6 No. 14-2764
Boultinghouse failed the first of four narcotics tests on April
10, 2014. That test indicated positive results for both marijuana
and methamphetamine. According to DeCarli, Boultinghouse
admitted to having used both drugs approximately five days
earlier. When DeCarli had Boultinghouse submit another
sample on May 5,1 he again tested positive for both marijuana
and methamphetamine; and DeCarli testified that Boulting-
house again admitted to having used both drugs. Repeat
testing one week later produced a positive result for marijuana
alone, and Boultinghouse confessed to marijuana use, accord-
ing to DeCarli. DeCarli recalled that after the two positive test
results in May, he offered Boultinghouse the opportunity to
undergo substance abuse treatment but that Boultinghouse
declined the offer on both occasions. Finally, a June 26 analysis
again yielded a positive result for marijuana; but Boulting-
house denied marijuana use prior to this test. By this time,
DeCarli had also become aware of Boultinghouse’s June 9
arrest in Posey County.
At this juncture, DeCarli testified, he advised
Boultinghouse that something had to be done in view of the
(unreported) arrest and multiple positive drug tests. “The
minimal option,” DeCarli told Boultinghouse, was to ask the
court to modify the conditions of his release to include place-
ment in a halfway house for a period of up to 180 days. R. 21
at 21-22. DeCarli testified that Boultinghouse had initially
consented to the proposal, agreed to waive his right to a
1
DeCarli testified that whereas traces of methamphetamine are typically
eliminated from the body within three days of use, it may take up to 30
days for evidence of marijuana use to dissipate.
No. 14-2764 7
hearing on this proposed modification, and signed a waiver.
See R. 5-1. DeCarli had then filed a petition with the district
court seeking the modification. See R. 5. But Boultinghouse
evidently had experienced a change of heart, and several days
later, he had filed a pro se, emergency motion seeking to have
DeCarli removed from his case or to terminate his supervised
release.2 Once DeCarli had became aware of Boultinghouse’s
motion, he had filed the petition to revoke Boultinghouse’s
supervised release, triggering the hearing that is the subject of
this appeal. See R. 9.
DeCarli’s direct examination concluded with his recom-
mendation that Boultinghouse’s supervised release be revoked
and that he be incarcerated for a period of 21 months (the
minimum term recommended by the applicable policy state-
ment of the Sentencing Guidelines) with no additional
supervision to follow.
Before the cross-examination of DeCarli commenced, the
court revisited the matter of Boultinghouse’s representation:
THE COURT: Mr. Boultinghouse, you
have an opportunity to ask
questions of Mr. DeCarli.
2
The motion, which was supported by Boultinghouse’s affidavit, alleged,
inter alia, that DeCarli had been forging Boultinghouse’s initials on the urine
specimens, that the test results indicating drug use were inaccurate, and
that, contrary to DeCarli’s allegation, he had timely reported his arrest in
Posey County to DeCarli. See R. 6 & 6-1. Boultinghouse argued that DeCarli
was no longer credible and that, at a minimum, the court should have
DeCarli removed from the case.
8 No. 14-2764
THE DEFENDANT: Yes.
THE COURT: And again I advise you to
have counsel here.
THE DEFENDANT: I understand, sir.
THE COURT: Counsel understands—exper-
ienced counsel such as Mr.
Keating [the attorney the
court had summoned as
stand-by counsel] under-
stands how to ask questions,
understands the rules of evi-
dence, and these are penal-
ties, as you’ve just heard, of
21 months—
THE DEFENDANT: Very serious.
THE COURT: —incarceration at the Bureau
of Prisons, so I can’t empha-
size enough the importance
of you being represented by
competent counsel.
And so do you wish to have
Mr. Keating?
THE DEFENDANT: No, sir. He doesn’t under-
stand or know my case—
THE COURT: All right.
THE DEFENDANT: —not like me.
No. 14-2764 9
THE COURT: All right. I’ll find, then, that
you knowingly and volun-
tarily waive your right to
counsel and permit you to go
ahead.
R. 21 at 23-24.
Boultinghouse proceeded with his cross-examination of
DeCarli, and it is fair to say that the examination was as
amateurish as it was short. He began by suggesting that
DeCarli had falsely represented to the court that he had
violated the terms of his release by committing another crime,
given that the charges of creating a public disturbance and
intimidation were still pending in state court.3 The district
court had to admonish Boultinghouse that cross-examination
was a time for questions, not argument. R. 21 at 26. Boulting-
house moved on to the drug-related violations, and he did
manage to extract an important concession from DeCarli when
he asked his probation officer what evidence there was that he
had frequented a place where controlled substances were
illegally distributed: DeCarli replied that Boultinghouse had
tested positive for narcotics use; DeCarli added that three
drug-related violations with which Boultinghouse was charged
(use, possession, and frequenting) were standard allegations
that his office pursued when a supervisee tested positive for
drug use. R. 21 at 27. Boultinghouse thus did manage to make
3
We note that when Boultinghouse raised the subject of the charges
pending in Indiana state court, the district judge warned Boultinghouse that
any statements he made regarding those charges could be used against him.
R. 21 at 24-25.
10 No. 14-2764
clear to the court that these violations were based on the
positive test results and nothing more. At this point,
Boultinghouse informed the court that he wished to proceed
with argument, and the court excused DeCarli from the
witness stand.
When the court advised Boultinghouse that he had a right
to present his own evidence at the hearing, Boultinghouse
reminded the court that he had submitted his own sworn
affidavit to the court in support of his previously-filed request
to have DeCarli removed from his case. The court located the
affidavit and then recited its contents. Boultinghouse averred
that (1) he had not abused, ingested, or taken any illegal drugs
since before August 16, 2005; (2) at no time during his super-
vised release had he initialed the seal upon any urine specimen
collected by DeCarli for analysis; (3) he had not been allowed
to read any document that DeCarli had given him to sign, and
he had been forced to sign such documents under protest and
duress; (4) he had informed DeCarli by telephone of his arrest
in Posey County within 72 hours as required; and (5) he was
afraid of DeCarli and believed that DeCarli was attempting to
have him incarcerated in an illegal and procedurally defective
manner. R. 21 at 30; see R. 6-1. The court asked Boultinghouse
whether he had anything to add to his affidavit, and
Boultinghouse said that he did not. The court also confirmed
that Boultinghouse had no additional evidence to present.
Under questioning by the government, Boultinghouse
stated that he had filed his request to remove DeCarli (and
supporting affidavit) after his meeting with DeCarli on June 26,
when DeCarli advised him that he would seek to have him
No. 14-2764 11
arrested in view of the multiple violations of the conditions of
his release.
In response to additional questions posed by the court,
Boultinghouse acknowledged that he had initialed and signed
the urinalysis chain of custody forms. But Boultinghouse told
the court that he had done so under duress. When asked for a
second time whether he had any other evidence to present,
Boultinghouse said that he did not.
The parties made their final arguments. The government
argued that DeCarli’s testimony established by a preponder-
ance of the evidence that Boultinghouse had failed multiple
drug tests and thus was guilty of each of the alleged drug
violations, and that he had also failed to report his arrest on the
public disturbance and intimidation charges to DeCarli. The
prosecutor urged the court to impose a sentence of 24 months.
For his part, Boultinghouse contended that DeCarli’s testimony
could not be accepted as truthful. With respect to his Posey
County arrest, Boultinghouse renewed his contention that
because he had not yet been convicted of anything in state
court, DeCarli’s allegation that he had committed another
criminal offense amounted to perjury. As to the narcotics
charges, Boultinghouse argued that the chain of custody on the
urine specimens resulting in the reports of drug usage was
defective, because he himself had not initialed the seal on each
specimen (recall DeCarli’s testimony that he rather than
Boultinghouse had initialed the seals), which Boultinghouse
asserted was in violation of an unspecified federal regulation.
Relatedly, Boultinghouse contended that DeCarli had fraudu-
lently represented to the government’s laboratory that the
chain of custody on the specimens was sound. In sum, DeCarli
12 No. 14-2764
had no credibility, Boultinghouse argued. “He’s committed
perjury on … the petition itself, and he’s been forging my
signature and committing chain-of-custody fraud the whole
time … .” R. 21 at 41.
The district court found that the government had estab-
lished four of the five charged violations of Boultinghouse’s
supervised release terms. The court noted that the conflicting
accounts given by DeCarli and Boultinghouse called for a
credibility determination. “The court finds that the testimony
given by Mr. DeCarli is very credible testimony. I have no
reason not to believe that.” R. 21 at 43. The court thus credited
DeCarli’s testimony that Boultinghouse had admitted to using
both methamphetamine and marijuana in April and May, 2014.
Based on those admissions and the positive test results that
DeCarli had reported, the court found that each of the charged
narcotics violations (2, 3, and 4) was true. The allegation that
Boultinghouse had failed to report his arrest likewise (charged
violation number 5) came down to a question of credibility
(Boultinghouse stated in his affidavit that he had, in fact, told
DeCarli about the arrest) and, here again, the court credited
DeCarli on this point, and thus found that this violation had
been proven. As the government had presented no evidence as
to the allegation that Boultinghouse had committed another
criminal offense (charged violation number 1), the court made
no finding as to this alleged violation.
Without further ado, the court proceeded to the penalty
phase of the hearing. The more serious of the violations (those
involving the use and possession of narcotics) were Grade B
violations under the Sentencing Guidelines, and Boultinghouse
had a criminal history category of VI. The pertinent Guidelines
No. 14-2764 13
policy statement as to imprisonment recommended a sentence
within the range of 21 to 27 months, see U.S.S.G. § 7B1.4(a); but
that range was capped at 24 months by the statutory maximum
term of two years, see 18 U.S.C. § 3583(e)(3). R. 9-1 at 2. After
noting these points, the court revoked Boultinghouse’s release
and, without explanation as to the penalty it chose, ordered
Boultinghouse to serve the maximum permissible term of
imprisonment: 24 months. R. 21 at 45.
II.
Having summarized the revocation proceeding below, we
come to the two issues that Boultinghouse pursues on appeal.
He contends first that the record does not establish that his
waiver of representation by counsel at the revocation hearing
was knowing, in the sense that it was fully informed. In his
view, the court did not conduct a sufficiently thorough
colloquy to advise him of the risks of self-representation, nor
did it assess all of the relevant criteria before accepting his
decision to proceed pro se. Second, Boultinghouse contends
that the court committed a procedural error in failing to state
any reasons for the sentence it imposed for the supervised
release violations. In the absence of a stated rationale for the
sentence, Boultinghouse argues, there is no confirmation that
the court considered the statutory sentencing factors, and
consequently the record does not permit this court to review
the substantive reasonableness of the sentence.
A. Waiver of representation by counsel
The parties have analyzed Boultinghouse’s decision to
represent himself at the revocation hearing through the lens of
the Sixth Amendment, which grants a defendant a right to the
14 No. 14-2764
assistance of counsel at all critical stages of the criminal
process, Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S. Ct. 1379, 1383
(2004), along with a corresponding right to reject counsel and
to represent himself, see Faretta v. California, 422 U.S. 806, 819-
20, 95 S. Ct. 2525, 2533 (1975) (noting that “[t]he right to defend
is given directly to the accused[,] for it is he who suffers the
consequences if the defense fails”). Sixth Amendment jurispru-
dence requires that a defendant’s waiver of the right to an
attorney be knowing and informed as well as voluntary. Tovar,
541 U.S. at 88, 124 S. Ct. at 1387; Faretta, 422 U.S. at 835, 95
S. Ct. at 2541. Consequently, when a defendant indicates a
desire to represent himself, the trial judge is charged with
engaging the defendant in a colloquy to establish both that the
defendant is waiving his right to counsel of his own free will
and with a concrete understanding of the consequences of his
decision. See Tovar, 541 U.S. at 88-90, 124 S. Ct. at 1387-88; see
also Faretta, 422 U.S. at 835, 95 S. Ct. at 2541 (citing Johnson v.
Zerbst, 304 U.S. 458, 464-65, 58 S. Ct. 1019, 1023 (1938)).
However, the Sixth Amendment does not apply in a
hearing convened to decide whether a defendant’s supervised
release should be revoked. United States v. Kelley, 446 F.3d 688,
690 (7th Cir. 2006). The Sixth Amendment’s protections govern
“criminal prosecutions,” U.S. CONST. amend. VI, but a revoca-
tion proceeding, because it focuses on the modification of a
sentence already imposed and implicates the conditional
(rather than absolute) liberty that the defendant enjoys as a
result of that sentence, is not considered to be a stage of a
criminal prosecution. See Gagnon v. Scarpelli, 411 U.S. 778, 782,
93 S. Ct. 1756, 1759-60 (1973) (revocation of probation);
Morrissey v. Brewer, 408 U.S. 471, 480, 92 S. Ct. 2593, 2600 (1972)
No. 14-2764 15
(revocation of parole); Kelley, 446 F.3d at 691 (holdings of
Scarpelli and Morrissey apply to revocation of supervised
release) (collecting cases).
Nonetheless, because a revocation proceeding does
implicate a defendant’s liberty interest, the Fifth Amendment’s
due process clause accords the defendant certain basic proce-
dural protections in a revocation hearing. See Scarpelli, 411 U.S.
at 786, 93 S. Ct. at 1761-62; Morrissey, 408 U.S. at 487-89, 92
S. Ct. at 2603-04. Among these are a right to representation by
counsel not in every instance, but presumptively when the
defendant has a colorable claim that he has not committed a
violation of the conditions of his release or, alternatively, a
substantial case to make against revocation, notwithstanding
any violation, that may be difficult to develop or present.
Scarpelli, 411 U.S. at 790, 93 S. Ct. at 1764; United States v.
Eskridge, 445 F.3d 930, 932 (7th Cir. 2006).
Federal Rule of Criminal Procedure 32.1, which governs the
revocation or modification of supervised release, was largely
meant to codify the procedural rights that the Supreme Court
referenced in Morrissey and Scarpelli. United States v. LeBlanc,
175 F.3d 511, 515 (7th Cir. 1999); see also United States v. Mosley,
759 F.3d 664, 668 n.3 (7th Cir. 2014); United States v. Kirtley,
5 F.3d 1110, 1112 (7th Cir. 1993); United States v. Manuel,
732 F.3d 283, 291 (3d Cir. 2013); United States v. Hodges, 460 F.3d
646, 651 (5th Cir. 2006). The rule requires, among other things,
that a defendant facing the potential revocation of his release
be advised of his right to retain counsel or to request that
counsel be appointed for him if he is unable to obtain represen-
tation on his own. See Rule 32(b)(2)(D); Eskridge, 445 F.3d at
16 No. 14-2764
932-33; Manuel, 732 F.3d at 291; Hodges, 460 F.3d at 651; see
also18 U.S.C. § 3006A(a)(1)(E) (each district court shall have
plan to furnish representation for financially eligible persons
charged with violation of supervised release). But because
there is no constitutional guarantee of representation in all
revocation cases, neither is there a constitutional right to
counsel of one’s choosing, including a right to self-representa-
tion. See Hodges, 460 F.3d at 650. Instead, “self-representation
in the revocation context is a matter of discretion vested in the
district court.” Hodges, 460 F.3d at 650. Our review of the
district court’s decision on that score is commensurately
deferential. See United States v. Volpentesta, 727 F.3d 666, 676
(7th Cir. 2013) ( district court’s finding that defendant’s waiver
of counsel in criminal proceeding was knowing and voluntary
reviewed for abuse of discretion) (citing United States v. Todd,
424 F.3d 525, 530 n.1 (7th Cir. 2005)).
Although the source of a defendant’s right to counsel is
different in the revocation context, his waiver of that right, like
his waiver of any of the other procedural rights granted by
Rule 32.1, still must be both knowing and voluntary. See
generally LeBlanc, 175 F.3d at 515 (waiver of right to revocation
hearing); Manuel, 732 F.3d at 291 (waiver of right to counsel);
Hodges, 460 F.3d at 651-52 (same). Sixth Amendment cases
which elaborate on the requirements for a knowing and
voluntary waiver of one’s right to an attorney thus remain
relevant in the revocation context. However, we must have in
mind that the due process framework that animates Rule 32.1
is a flexible framework that is focused on the fundamental
fairness of the hearing. See Morrissey, 408 U.S. at 481, 92 S. Ct.
at 2600; Kelley, 446 F.3d at 690-91, 692-93; see also Manuel, 732
No. 14-2764 17
F.3d at 291; Hodges, 460 F.3d at 651-52. Rigid compliance with
a prescribed colloquy is not required, so long as the totality of
the circumstances makes clear that the defendant made a
knowing and voluntary choice to proceed without counsel. See
LeBlanc, 175 F.3d at 517 (waiver of Rule 32.1 rights generally);
Manuel, 732 F.3d at 291 (waiver of right to counsel); Hodges,
460 F.3d at 652 (same). “Although a thorough colloquy with
the district court may be the most precise means of evaluating
the [knowing and voluntary nature] of the waiver, the failure
of the district court to engage in a comprehensive quality is
not, of itself, fatal to the defendant’s waiver.” Id. We are
looking for the “practical truth” of what the defendant under-
stood was at stake, in the context of a proceeding that is much
less formal than a criminal trial. Id.; see also Manuel, 732 F.3d at
291; LeBlanc, 175 F.3d at 517. Thus, where the record confirms
that the defendant had a sufficient grasp of a particular right or
consequence of the waiver that the court may have omitted
from its admonishments, we will sustain the waiver as know-
ing notwithstanding the gap in the colloquy. See Hodges,
460 F.3d at 652; see also Manuel, 732 F.3d at 291.
There is no question that Boultinghouse’s decision to
represent himself was voluntary. This was his decision entirely:
he made it against the district court’s explicit advice, knowing
not only that the district court was prepared to provide counsel
to him but that an experienced defense attorney was, in fact,
standing by in the courtroom to serve as a resource for him but
also to assume responsibility for his defense if that is what he
wished. There is no indication or suggestion that anyone
pressured him to forego representation by an attorney.
18 No. 14-2764
The contested issue is whether his decision to waive the
assistance of counsel was knowing in the sense that he appreci-
ated the consequences of his decision. Generally speaking, the
waiver is deemed intelligent if the defendant “knows what he
is doing and his choice is made with eyes open.” Tovar, 541 U.S.
at 88, 124 S. Ct. at 1387 (quoting Adams v. United States ex rel.
McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 242 (1942)). What
circumstances in particular are necessary to confirm that the
defendant has made an intelligent choice to represent himself
depends on a range of factors that are case-specific, including
the extent of his education or sophistication, the complexity of
the charge, and the stage of the proceeding at which he elects
to proceed pro se. Tovar, 541 U.S. at 88, 124 S. Ct. at 1387 (citing
Johnson v. Zerbst, 304 U.S. at 464, 58 S. Ct. at 1023). Thus,
looking at the record as a whole, we consider the following
factors: (1) “whether and to what extent the district court
conducted a ‘formal hearing’ into [the defendant’s] decision to
represent himself, (2) whether there is other evidence in the
record that establishes that [the defendant] ‘understood the
disadvantages of self-representation,’ (3) [the defendant’s]
‘background and experience,’ and (4) the ‘context’ of [the
defendant’s] decision to proceed pro se.” United States v. Eads,
729 F.3d 769, 775 (7th Cir. 2013) (quoting United States v. Avery,
208 F.3d 597, 601 (7th Cir. 2000)), cert. denied, 134 S. Ct. 1579
(2014).
The district court did question Boultinghouse on his
decision to proceed without counsel. It engaged Boultinghouse
on the subject twice, once at the outset of the revocation
hearing, and again at the conclusion of DeCarli’s direct
examination. On the first occasion, after advising Boulting-
No. 14-2764 19
house of his right to representation, the court asked him
whether he wanted an attorney, and when Boultinghouse said
he did not, the court admonished Boultinghouse both that he
would be held to the same standards as an attorney and that he
was, in the court’s view, pursing an unwise course in forgoing
representation. Boultinghouse responded that he understood
the maxim that the man who represents himself has a fool for
a client; he added that the issues, in his view, were simple.
Without formally accepting Boultinghouse’s waiver at that
time, the court proceeded to recite the charged violations of his
supervised release and to ensure that Boultinghouse under-
stood them.
If this were the entirety of the court’s inquiry into
Boultinghouse’s decision to represent himself, it likely would
not suffice to establish that his decision was intelligent. It is
clear from Boultinghouse’s own remark that he appreciated, at
least in an abstract sense, the perils of self-representation. But
although the court did take pains to ensure that Boultinghouse
understood the charges, and had warned Boultinghouse that
he would be held to the same standards as a lawyer, it had not,
at that point, given him a concrete illustration of why he might
be at a disadvantage without counsel, nor had it confirmed that
Boultinghouse appreciated what was at stake in the revocation
proceeding in terms of his liberty.
But the initial exchange was not the sum total of the court’s
inquiry into Boultinghouse’s decision. The court spoke with
him again before he began his cross-examination of DeCarli.
During DeCarli’s direct examination, the court had alerted
Boultinghouse that stand-by counsel was present in the
courtroom. When the government concluded its examination
20 No. 14-2764
of DeCarli, the court admonished Boultinghouse that an
experienced defense attorney, such as the one it had sum-
moned to the courtroom, would better understand how to
question a witness and would also be familiar with the rules of
evidence. The court also pointed to DeCarli’s recommendation
that he be imprisoned for 21 months as an illustration of the
gravity of proceeding. Boultinghouse acknowledged that the
proceeding was “[v]ery serious.” R. 21 at 23. Despite these
warnings, and the court’s invitation to accept representation by
the counsel it had summoned, Boultinghouse rejected the offer
of an attorney, insisting that he knew his case better than
counsel did. Only at that point did the court accept
Boultinghouse’s waiver as knowing and voluntary. Consider-
ing these two exchanges together, and the context in which
Boultinghouse elected to represent himself, we deem the
court’s inquiry adequate to ensure his decision was informed.
The fact that the court did not complete its inquiry into the
waiver until the conclusion of DeCarli’s direct examination is
not fatal. Certainly it is true, as Boultinghouse has pointed out,
that the government had essentially concluded its case for
revocation by that point; and Boultinghouse had thus been
without representation during the presentation of that case.
But Boultinghouse points to nothing in DeCarli’s testimony on
direct examination to which an attorney could have success-
fully objected on the basis of it being inadmissible or improper.
In the main, DeCarli described the procedure he followed in
collecting specimens, reported Boultinghouse’s positive test
results and what Boultinghouse said to him when confronted
with those results, and noted Boultinghouse’s failure to timely
inform him of his arrest by Posey County authorities. All of
No. 14-2764 21
this was relevant and admissible. Moreover, all or nearly all of
this was within Boultinghouse’s own knowledge, making it
easier for him to recognize potential factual inaccuracies or
discrepancies in DeCarli’s testimony than it otherwise might
have been.
The record leaves no doubt that Boultinghouse was aware
of some of the ways in which he might be disadvantaged by
assuming responsibility for his own defense. Beyond the
court’s advice that it was unwise to proceed without represen-
tation, and its warning that Boultinghouse would be held to
the same standards as an attorney, it explained that an attorney
would have a better understanding of the rules of evidence
and how to question a witness, thus ensuring that Boulting-
house had a specific idea of how counsel would be better
equipped than he to represent his position.4 The court might
also have pointed out that an attorney would be better
4
Boultinghouse points out that the federal rules of evidence do not apply
in this context. See Fed. R. Evid. 1101(d)(3). But that does not mean that
anything goes in terms of the evidence that the parties may present at a
revocation proceeding; the due process clause and Rule 32.1(b)(2)(C)
impose limits which are necessary to a fundamentally fair and just hearing.
See Mosley, 759 F.3d at 667-69; Kelley, 446 F.3d at 692-93. An experienced
lawyer will appreciate such limits. Moreover, advising a defendant that a
lawyer is familiar with the rules of evidence is a shorthand way of making
the broader point that a lawyer knows how to distinguish between
admissible and inadmissible evidence, when and how to object to evidence
that is (potentially) inadmissible, and how to properly present evidence to
the court. Thus, advising Boultinghouse that an attorney is familiar with the
rules of evidence was still a meaningful illustration of how a lawyer would
be helpful to him in the revocation proceeding, and how his own lack of
legal training would put him at a disadvantage.
22 No. 14-2764
equipped to recognize potential weaknesses in the govern-
ment’s case and fruitful defense arguments to pursue in
opposition to revocation. But having given Boultinghouse two
specific examples of things a lawyer was better trained to do
than he was, the court did enough to make the benefits of legal
counsel more than an abstract proposition.
The record also confirms that Boultinghouse understood
what was at stake in the hearing. He indicated that he under-
stood each of the charged violations of his supervised release.
Although the court never discussed the full range of possible
penalties with Boultinghouse (these of course were set forth in
the petition to revoke his supervised release), DeCarli did
testify that he was recommending a prison term of 21 months,
and the district court reminded Boultinghouse of that recom-
mendation before it accepted his waiver. We have no doubt
that Boultinghouse understood that he was facing the possibil-
ity of a significant period of incarceration if the court revoked
his supervised release. He himself described the stakes as
“[v]ery serious.” R. 21 at 23.
The nature of the revocation proceeding also informs our
judgment. A revocation proceeding is much less formal than a
trial. The judge serves as factfinder in this proceeding, see
Johnson v. United States, 529 U.S. 694, 700, 120 S. Ct. 1795, 1800
(2000), the burden of proof is a simple preponderance of the
evidence, see 18 U.S.C. § 3583(e)(3), and the rules of evidence
do not apply, see Fed. R. Evid. 1101(d)(3). The issues in this
proceeding were relatively straightforward, as Boultinghouse
himself recognized: Had he been using narcotics (and
relatedly, had he possessed them and frequented a place where
they were sold or distributed), and did he fail to report his
No. 14-2764 23
Posey County arrest to his probation officer within 72 hours?
Indeed prior to the hearing, Boultinghouse had prepared and
submitted an affidavit setting out his position as to these
charges.
In this context, we are satisfied that Boultinghouse was
capable of making a knowing waiver of his right to counsel
and that he did so intelligently. He appreciated what was at
stake, understood the nature of the charges, and knew what
the factual issues were. He was aware of his right to counsel,
had some sense of what a lawyer might be able to do better
than he himself could, and was directly advised by the judge
not to waive representation. He thus appreciated the risk he
was taking by choosing to represent himself.
It is true that the court did not question or expressly discuss
Boultinghouse’s education, level of sophistication, and experi-
ence with the legal system, including self-representation. We
are told that Boultinghouse went no further in school than the
tenth grade and that he had never before represented himself
in a legal proceeding. At the same time, with a criminal history
category of VI, Boultinghouse clearly had a significant criminal
record, and he had obviously participated in the trial resulting
in his conviction in this case. So he had more than a passing
familiarity with the criminal process. See Hodges, 460 F.3d at
653; see also Volpentesta, supra, 727 F.3d at 678 (“a defendant’s
prior experience with the judicial system ‘tends to show that he
understood the charge against him was serious and that he was
accepting a risk by representing himself.’”) (quoting Todd,
supra, 424 F.3d at 533). The government suggests that Chief
Judge Young necessarily would have had this record in mind
when he evaluated the waiver, given that he presided over
24 No. 14-2764
Boultinghouse’s original trial and sentencing and thus was
familiar with Boultinghouse’s background and level of
sophistication. But the trial and sentencing had taken place
years earlier, and because the judge did not comment on
Boultinghouse’s background, we agree with Boultinghouse
that we can only speculate about how much of his background
Judge Young may have recalled and taken into consideration,
beyond the fact that Boultinghouse was not new to the criminal
process and had sat through a trial in his courtroom.
The omission of any inquiry into and express evaluation of
Boultinghouse’s background, education, and sophistication
certainly renders the inquiry into his waiver less complete than
it ideally ought to have been. But the record otherwise makes
clear that Boultinghouse was fully able to comprehend the
nature of the revocation proceeding, what the issues were, the
risks of proceeding without a lawyer, and how to present his
own case. He had drafted his own affidavit responding to the
probation officer’s allegations and supplying the factual
support for his theory of the case. He was able to at least
minimally question DeCarli. He presented to the court a
coherent statement of his position as to the issues and evi-
dence. We have no doubt that a prepared lawyer could have
done a better job as his advocate, as we discuss below. But
whatever the limitations of Boultinghouse’s education and
experience, the record does not cause us to doubt his ability to
make an intelligent decision as to his representation.
We also agree that Boultinghouse did not do a particularly
effective job advancing his own interests. For example, when
Boultinghouse commenced his cross-examination of DeCarli by
suggesting that the probation officer was guilty of perjury for
No. 14-2764 25
asserting that Boultinghouse had committed another criminal
offense, given that the charges for which he had been arrested
in Posey County had not yet been resolved, he was overlook-
ing the obvious point that a conviction was not a prerequisite
to a finding that he had violated the terms of his supervised
release. See U.S.S.G. § 7B1.1, comment. (n.1); United States v.
Salinas, 365 F.3d 582, 587-88 (7th Cir. 2004); United States v.
Fleming, 9 F.3d 1253, 1254 (7th Cir. 1993) (per curiam). And an
attempt to discredit a series of incriminating drug tests by
accusing one’s probation officer of fraud, perjury, and failure
to observe unspecified regulations is not a strategy that is
likely to succeed with most judges. A good lawyer would have
steered him away from that strategy and looked for more
constructive defense theories to pursue.
Among other avenues, Boultinghouse suggests that counsel
might have demanded that the individual(s) who performed
the urinalyses be produced for examination at the hearing;
challenged as vague the condition that Boultinghouse not
frequent places where drugs are sold or distributed; attacked
as multiplicitous the three separate charged violations based
on the positive drug tests; and invoked his Fifth Amendment
right against self-incrimination in an effort to exclude from
evidence the statements he made to his probation officer. It is
not obvious that any or all of these strategies necessarily would
have been successful. See, e.g., Kelley, 446 F.3d at 691-92 (ban on
testimonial hearsay articulated in Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354 (2004), does not apply in revocation
hearing); United States v. Phillips, 704 F.3d 754, 767-68 (9th Cir.
2012) (rejecting argument that supervised release condition
prohibiting defendant from frequenting places where con-
26 No. 14-2764
trolled substances were illegally sold, used, distributed, or
administered was impermissibly vague or overbroad). But we
endorse the point that there surely were more promising
defense strategies than the ones Boultinghouse himself opted
to pursue. It is likely that an attorney would have pressed the
court to pursue a modification of the terms of Boultinghouse’s
supervised release, as DeCarli himself had first proposed,
before convening a revocation hearing and entertaining the
possibility of revoking his release and re-incarcerating him.
And, if nothing else, counsel surely would have made a case
for a lesser prison term upon revocation than that proposed by
DeCarli and the government.
But however ill-advised Boultinghouse’s strategy may have
been, it does not show that his decision to reject representation
was unintelligent. A decision may be informed without being
right or smart; many human decisions fall into this category.
See Faretta, 422 U.S. at 834, 95 S. Ct. at 2541 (“[A]lthough [the
defendant] may conduct his defense ultimately to his own
detriment, his choice must be honored out of ‘that respect for
the individual which is the lifeblood of the law.’”) (quoting
Illinois v. Allen, 397 U.S. 337, 350-51, 90 S. Ct. 1057, 1064 (1970)
(Brennan, J., concurring)); United States v. Gerritsen, 571 F.3d
1001, 1009 (9th Cir. 2009) (“In considering whether [the
defendant] has effectively waived his right to counsel, we must
avoid the tendency of hindsight to diminish the importance of
[his] corresponding right to self-representation.”). The relevant
point here is that before the district court accepted
Boultinghouse’s waiver, it gave him some concrete under-
standing of the ways in which he might be better off with a
lawyer. Although the revocation hearing plainly did not turn
No. 14-2764 27
out as Boultinghouse hoped, we are satisfied that he knew
what he was doing when he insisted on representing himself.
It is always prudent for a court, informed by a defendant
that he wishes to waive his right to an attorney, to engage the
defendant in a thorough dialogue regarding his decision and
to evaluate on the record the factors bearing on the knowing
and intelligent nature of the waiver. Yet, as the Supreme Court
has said in the Sixth Amendment context, there is no one
checklist that a court must follow in evaluating and accepting
(or rejecting) a defendant’s waiver of his right to counsel. See
Tovar, 541 U.S. at 88, 124 S. Ct. at 1387. Given the informal
nature of a revocation proceeding, the straightforward nature
of the factual issues raised in the proceeding here, the fact that
the court covered most of the relevant bases before accepting
Boultinghouse’s waiver, and the fact that the record makes
clear that Boultinghouse understood what was at stake in the
proceeding and was advised outright by the court that he was
making an unwise decision, we believe the court did not abuse
its discretion in accepting his waiver.
B. Sentence
Boultinghouse also challenges the 24-month sentence that
the court imposed upon revoking his probation. In particular,
he contends that because the court did not articulate a rationale
for the sentence, the court committed a procedural error that
requires us to remand for resentencing.
Our review of a sentence imposed in a revocation proceed-
ing is “highly deferential,” and perhaps akin to “‘the narrowest
judicial review of judgments we know,’ namely judicial review
of sanctions imposed by prison disciplinary boards.” United
28 No. 14-2764
States v. Robertson, 648 F.3d 858, 859 (7th Cir. 2011) (quoting
United States v. Kizeart, 505 F.3d 672, 675 (7th Cir. 2007)). We
will sustain the sentence so long is it is not “plainly unreason-
able.” Kizeart, 505 F.3d at 673-75.
When a district judge revokes a defendant’s supervised
release and sentences him to a prison term, he must consider
both the Guidelines policy statements that prescribe the
penalties for supervised release violations, see U.S.S.G. Chapter
7, Part B, as well as the statutory sentencing factors set forth in
18 U.S.C. § 3553(a), as applicable to revocations of supervised
release, see 18 U.S.C. § 3583(e); and he must also “say something
that enables the appellate court to infer that he considered both
sources of guidance.” Robertson, 648 F.3d at 860 (emphasis in
original). “Otherwise, competent appellate review is impossi-
ble.” Id.
There is no dispute here that the district court took into
account the Guidelines policy statements. These were cited and
applied in the probation officer’s petition to revoke
Boultinghouse’s supervise release, and the court addressed
them implicitly in discussing the severity of the violations and
the range of possible penalties. R. 21 at 44-45. As we noted
earlier, section 7B1.4(a) called for a sentence in the range of 21
to 27 months, but because the sentence was capped by the
relevant statute at 24 months, see 18 U.S.C. 3583(e)(3), that
became the top of the range, see § 7B1.4(b)(3)(a). The 24-month
sentence imposed by the court was within that (modified)
range, and consequently the sentence is entitled to a presump-
tion of reasonableness on appeal. E.g., United States v. Jones,
774 F.3d 399, 404 (7th Cir. 2014).
No. 14-2764 29
The court did not, however, mention the applicable section
3553(a) sentencing factors; and because the court did not give
reasons for the sentence it imposed, we cannot be sure that the
court considered these factors. The sentence was within the
advisory Guidelines range, and as such it required only a
concise explanation by the court. See United States v. Castaldi,
547 F.3d 699, 706-07 (7th Cir. 2008). But there is a distinction
between a minimal explanation and no explanation at all. As
we observed in United States v. Pitre, 504 F.3d 657, 664 (7th Cir.
2007) (internal quotation marks and citations omitted), “our
inquiry focuses not on the detail with which the district court
expressed its reasons for imposing a specified period of
confinement, but on whether the district court’s statements on
the record reflect that it considered the appropriate factors in
exercising its discretion.”
The same statute which sets forth the factors a sentencing
court must consider also requires the court to state its reasons
for imposing a particular sentence, see 18 U.S.C. § 3553(c);
United States v. Dillard, 910 F.2d 461, 465 (7th Cir. 1990) (per
curiam); and Robertson likewise states unequivocally that a
sentencing court must articulate some rationale for the sen-
tence imposed on revocation, so as to confirm that it consid-
ered both the Guidelines policy statements and the statutory
sentencing factors, and to enable us to review the sentence
imposed, 648 F.3d at 859-60. The government reminds us that
the sentence imposed in Robertson was nearly twice the
maximum sentence recommended by the Guidelines and as
such was a sentence that demanded greater justification by the
court. True enough; and the greater the extent of the court’s
departure from the Guidelines sentencing range, the more
30 No. 14-2764
imperative it is for the court to detail its justification for the
sentence; a within-Guidelines sentence, by contrast, requires
lesser explanation. See Jones, 774 F.3d at 404; compare United
States v. Newsome, 428 F.3d 685, 687-88 (7th Cir. 2005), with
United States v. Dean, 414 F.3d 725, 730 (7th Cir. 2005). But we
have never said that no explanation is required. Robertson notes
that some articulation of the court’s thinking is necessary to
confirm that it has considered the requisite Guidelines policy
statements and statutory sentence criteria, and that without a
stated rationale appellate review of the sentence is foreclosed.
648 F.3d at 859-60. That is no less true when a court imposes a
sentence within the Guidelines range than when it imposes a
sentence outside of the range. Nor does the highly deferential
standard of review governing a sentence imposed on revoca-
tion of a defendant’s supervised release eliminate the need for
at least a minimal statement of the court’s reasons for the
sentence. See Jones, 774 F.3d at 404 (“The explanation must be
sufficient to allow a court of appeals to assess the reasonable-
ness of the sentence imposed.”) (citing United States v. Conaway,
713 F.3d 897, 903 (7th Cir. 2013)). In the absence of any ratio-
nale, we cannot meaningfully review the sentence imposed.
It is not our intent to elevate technical form over substance,
particularly with respect to a proceeding that is informal and
the result of which commands great deference from us as a
reviewing court. We are also mindful that district judges have
crowded dockets imposing many demands on their time. Our
insistence that reasons be given for a sentence imposed upon
the revocation of release is not an onerous requirement. When
the sentence imposed is within the range recommended by the
Guidelines policy statements, a court need only say enough to
No. 14-2764 31
assure us that it has considered both the policy statements and
the section 3553(a) factors and to explain why it has selected a
particular sentence within the recommended range.
The range in this case was a narrow one as a result of the
statutory cap. One might be tempted to say that no explanation
is needed to justify a sentence of 24 months versus 21 months.
But this strikes us as a perilous path to go down. Even small
differences in the sentence matter to the defendant, and we do
not think that the district court’s obligation to explain its
sentencing decision may be excused simply because the stakes
may seem less significant to us. See Glover v. United States,
531 U.S. 198, 121 S. Ct. 696 (2001) (unchallenged Guidelines
error resulting in relatively modest increase in defendant’s
sentence may be sufficient to establish prejudice for purposes
of an ineffective assistance of counsel claim), abrogating Durrive
v. United States, 4 F.3d 548, 550-51 (7th Cir. 1993); Martin v.
United States, 109 F.3d 1177, 1178 (7th Cir. 1996). That point
aside, it is important to remember that the reasons a judge
gives for his sentence help to explain not only why he has
chosen a particular sentence within the Guidelines range, but
also why he opted to accept the recommended range in the
first instance, as the judge not only was not bound by the
range, see, e.g., United States v. Neal, 512 F.3d 427, 438 (7th Cir.
2008) (sentencing ranges recommended by Guidelines policy
statements “inform[ ] rather than cabin[ ] the district court’s
sentencing discretion”) (quoting Pitre, 504 F.3d at 664), but
could not presume, as we may on appeal, that a within-
Guidelines sentence is presumptively reasonable, see Nelson v.
United States, 555 U.S. 350, 352, 129 S. Ct. 890, 892 (2009) (per
curiam). Again, the need to justify the sentence is modest when
32 No. 14-2764
the sentence is within the Guidelines range, but absent any
explanation, we cannot do our job as an appellate court: we
would be placed in the position of offering our own justifica-
tions for the sentence rather than reviewing the district court’s
reasons. See United States v. White, 888 F.2d 490, 495 (7th Cir.
1989) (“The dominant role of the sentencing judge’s findings
and reasons means that we need ready access to them.”),
abrogated on other grounds by Stinson v. United States, 508 U.S. 36,
113 S. Ct. 1913 (1993). We have no option but to remand for
resentencing.
Remand will have the salutary effect of enabling the parties
as well as the court to make a more complete record as to the
appropriate penalty in this case. Although both parties
nominally had the opportunity to address the subject of
sentencing in their remarks at the close of evidence as to
whether Boultinghouse had violated the conditions of his
release (at which time the government summarily urged the
court to impose the maximum sentence), the court never
specifically advised Boultinghouse that he could address the
court on that subject, or that he had the right to present
mitigating information. See Rule 32.1(b)(2)(E); Pitre, 504 F.3d at
662 (“Rule 32.1 requires a district court to ask the defendant if
she wishes to make a statement for the court to consider before
imposing a term of reimprisonment following revocation of
supervised release.”); but see also United States v. Robertson,
537 F.3d 859, 862 (8th Cir. 2008) (acknowledging that Rule 32.1
entitles defendant to make a statement and present mitigating
information to court, but questioning whether rule imposes
obligation on court to advise him of this right and invite him to
make statement).
No. 14-2764 33
III.
The district court did not abuse its discretion in deeming
Boultinghouse’s waiver of his right to counsel at the revocation
proceeding to be knowing and intelligent. The absence of a
stated rationale for the 24-month sentence that the court
imposed upon revoking Boultinghouse’s supervised release
amounted to procedural error which requires resentencing.
The decision to revoke Boultinghouse’s supervised release is
therefore affirmed; the sentence is vacated and the matter is
remanded for resentencing.