United States v. Brian Ford , 798 F.3d 655 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3452
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN FORD,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 00-CR-227 — Charles N. Clevert, Jr., Judge.
____________________
ARGUED JUNE 1, 2015 — DECIDED AUGUST 20, 2015
____________________
Before WOOD, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
WOOD, Chief Judge. Brian Ford keeps getting into trouble.
After pleading guilty to a drug offense in 2001, he was sen-
tenced to a term of imprisonment followed by supervised
release. While on supervised release, he committed an act of
prostitution and other violations of the conditions of release,
and he was sentenced to new terms of imprisonment and
supervised release. Ford then allegedly committed a sub-
2 No. 14-3452
stantial battery while serving his second term of supervised
release. After holding a revocation hearing, the district court
found that Ford had indeed committed the battery and thus
had again violated the conditions of his supervised release.
Ford now appeals, claiming that the district court made a
number of errors in connection with the revocation. Because
Ford has waived some arguments and the rest have no merit,
we affirm the district court’s judgment.
I
In 2001, Ford pleaded guilty to one count of conspiracy to
possess with intent to distribute more than 50 grams of crack
cocaine and more than five kilograms of powder cocaine, in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. Af-
ter a series of sentencing reductions, he ultimately was sen-
tenced to 97 months of imprisonment, followed by five years
of supervised release. In 2009 he was released from prison
and began his term of supervised release. In 2013, the district
court revoked Ford’s supervised release after finding that he
had committed multiple violations of his supervised release
conditions. The court sentenced him to a 12-month term of
imprisonment and an 18-month term of supervised release.
Ford was released from prison on May 30, 2014, and began
his second term of supervised release.
On August 4, 2014, Ford allegedly committed a substan-
tial battery. The district court held a revocation hearing on
September 10, 2014, to determine whether the allegation was
true. Such an act, if proven, would constitute a violation of
the condition requiring Ford not to commit another federal,
state, or local crime. Three witnesses testified at the hearing:
Scott Rahoi, the alleged victim of the battery, Milwaukee Po-
No. 14-3452 3
lice Officer Lafayette Emmons, and Milwaukee Police Detec-
tive Andre Matthews.
The government first called Rahoi, who testified that a
person he knew as “Tony” was an apartment manager at the
building in which Rahoi lived. He identified Ford in court as
Tony. Rahoi stated that on August 4, 2014, Ford barged into
his apartment and angrily instructed him to vacate the resi-
dence. After Rahoi told Ford that he needed time to pack his
belongings, Ford became more irate and began to punch and
kick Rahoi, until Rahoi almost lost consciousness. Once Ford
left the apartment, Rahoi called 911. Officer Emmons arrived
soon thereafter, and Rahoi told him what had happened.
Later, while Rahoi was at the hospital, Officer Emmons
showed Rahoi a photo array, and Rahoi identified a picture
of the man he knew as Tony.
Rahoi admitted that he previously had committed a
felony and that he had problems with alcohol, though he
later denied that he had been drinking at the time of the
incident. On cross-examination, he further admitted that he
had probably seen Ford only twice before August 4, 2014. He
confessed that he had gotten into a fight with Jasmine Smith,
another tenant in his apartment, a few days before Ford
attacked him. During the cross-examination, Ford’s counsel
referred to a Milwaukee police report labeled Exhibit 5, in
which Smith had stated that Rahoi smoked crack cocaine on
the day of the incident. Rahoi denied this allegation.
Officer Emmons testified next. He stated that Rahoi had
told him that Tony, the building’s property manager, had
attacked him. Elaborating, he said that Rahoi had given him
both a description of Tony and Tony’s phone number, which
Rahoi had obtained from another tenant. Emmons identified
4 No. 14-3452
Exhibit 3 as the photo array he had given to Rahoi while
Rahoi was in the hospital. Emmons indicated that Rahoi had
identified Ford’s picture as that of his assailant. There was
some confusion, however, about the order of the photo-
graphs on the original array as compared to the order dis-
played in Exhibit 3. For this reason, it is unclear whether
Rahoi actually identified Ford or a man named Joseph Diaz.
Finally, Detective Matthews testified that he interviewed
Ford a few weeks after the incident. Matthews stated that
Ford had told him that he was not a property manager for
Rahoi’s building and that he did not know Rahoi. After be-
ing shown Exhibit 5 (the police report), Matthews testified
that Smith had told him that either Brandon or Tony man-
aged the building. He also said that Smith had identified a
photo of Ford as Tony. Ford’s counsel did not object to the
use of Exhibit 5. On cross-examination, counsel briefly ques-
tioned Matthews about Smith’s identification of Ford and
Smith’s statements regarding Rahoi’s crack cocaine use.
The government then rested. The court asked if the gov-
ernment wanted to enter the police report into evidence, and
it responded affirmatively. Before admitting the document
into evidence, the court asked Ford’s counsel if he had any
objection, to which he responded, “No, sir.” The revocation
hearing resumed on October 28, 2014. Ford was the only
witness. Ford denied involvement in the August 4, 2014 at-
tack and testified that he had never seen Rahoi before the
revocation hearing. He swore that he had been at home on
the day of the incident and further noted that he had been in
the property management business before but had stopped
working in that area over a year ago. During this testimony,
Ford’s counsel attempted to introduce Smith’s statements
No. 14-3452 5
about Rahoi’s drug use, but the court sustained the govern-
ment’s objection on relevance grounds.
The district court concluded that the government had
shown by a preponderance of the evidence that Ford had
violated his supervised release conditions by committing a
substantial battery against Rahoi. In coming to this decision,
the court relied on each of the testifying witnesses as well as
Smith’s statements from the police report. The court sen-
tenced Ford to 36 months of imprisonment with no super-
vised release, plus restitution in the amount of $646.84. The
court noted that it considered “all of the factors” under
§ 3553(a)(2). In particular, it discussed the seriousness of
Rahoi’s injuries; it stated that “the community should be
protected from [Ford’s] outbursts”; and it concluded that
“supervision to date has not been effective.” Finally, the
court determined that the sentence was “consistent with the
applicable guideline range of from [sic] 30 to 37 months.”
Ford timely appealed the district court’s judgment and
sentence. He raises three arguments. First, he contends that
the court violated Federal Rule of Criminal Procedure
32.1(b)(2)(C) and the Due Process Clause of the Fifth
Amendment by allowing the government to introduce
Smith’s statements, as contained in the police report. Second,
he argues that 18 U.S.C. § 3583(e)(3) and (h) dictate that his
statutory maximum sentence is one year and that his 36-
month sentence thus exceeds this maximum. Finally, Ford
alleges that the district court committed procedural error by
not adequately examining the relevant factors listed in 18
U.S.C. § 3553(a) at sentencing.
6 No. 14-3452
II
We begin with Ford’s contention that the district court
erred in admitting Smith’s statements from the police report,
Exhibit 5. Ford did not make this objection in the district
court. In fact, Ford’s counsel was the first to refer to Smith’s
statements, during his cross-examination of Rahoi. He again
mentioned Smith’s comments while cross-examining Detec-
tive Matthews, albeit after the government had elicited tes-
timony from Matthews about his interview with Smith.
Counsel also attempted to introduce the statements during
Ford’s testimony. The district court explicitly asked Ford’s
counsel whether he objected to the admission of the police
report that included Smith’s statements into evidence, and
counsel replied that he did not.
Waiver occurs where there is an “intentional relinquish-
ment or abandonment of a known right.” United States v.
Olano, 507 U.S. 725, 733 (1993) (citing Johnson v. Zerbst, 304
U.S. 458, 464 (1938)). In contrast to forfeiture, where “a de-
fendant negligently bypasses a valid argument,” “waiver
requires a calculated choice to stay silent on a particular mat-
ter.” United States v. Anderson, 604 F.3d 997, 1001 (7th Cir.
2010). Ford’s counsel’s actions at the revocation hearing
demonstrated a calculated choice to remain silent during the
government’s use of the police report, so that counsel could
also use the report—particularly Smith’s statements regard-
ing Rahoi’s drug use—to impeach Rahoi. Counsel repeatedly
brought up these statements, and he—not the government—
made the first reference to the report. Moreover, the court
clearly brought the admissibility of the report to counsel’s
attention, and counsel declined to object. These actions indi-
cate that counsel (on behalf of Ford) intentionally relin-
No. 14-3452 7
quished the right to object to the admissibility of the report
and the statements contained within it.
Ford now argues that because the Federal Rules of Evi-
dence do not apply to supervised release proceedings (and
because Ford consequently had no right under those Rules
to prevent the admission of the statements), he could not
have waived his right to object on appeal. But even if Ford
had no rights under the Federal Rules of Evidence, he still
could have complained by invoking either Federal Rule of
Criminal Procedure 32.1(b)(2)(C) or the Due Process Clause,
both of which protect defendants in revocation hearings.
Ford’s counsel did neither, even when prompted by the
court. Instead, he affirmatively used portions of the very re-
port to which he now objects. This was more than enough to
demonstrate waiver.
Even if we are wrong and Ford merely forfeited, rather
than waived, the objection, we would still not reverse. Be-
cause Ford did not object in the district court, our review
would be limited to a search for plain error. See FED. R. CRIM.
P. 52(b); Puckett v. United States, 556 U.S. 129, 135 (2009).
Plain error requires: “(1) an error or defect (2) that is clear or
obvious (3) affecting the defendant’s substantial rights (4)
and seriously impugning the fairness, integrity, or public
reputation of judicial proceedings.” Anderson, 604 F.3d at
1002. An error affects the defendant’s substantial rights if it
“affected the outcome of the district court proceedings.”
United States v. Wheeler, 540 F.3d 683, 689 (7th Cir. 2008).
Any error in admitting the statements did not affect the
outcome of these proceedings. In a revocation hearing, the
district court must find that the defendant violated a condi-
tion of his supervised release by a preponderance of the evi-
8 No. 14-3452
dence. See 18 U.S.C. § 3583(e)(3); United States v. Goad, 44
F.3d 580, 585 (7th Cir. 1995). Here, the alleged victim identi-
fied Ford in court as his assailant and stated that he had seen
Ford, whom he knew as Tony, twice before the battery. An-
other building tenant gave Rahoi a phone number for the
apartment manager, which Rahoi then gave to Officer Em-
mons. This number led to Ford (thus corroborating Rahoi’s
account of Ford as the apartment manager who went by the
name of Tony). Finally, Officer Emmons testified as to
Rahoi’s extensive injuries. The only contradictory evidence
was Ford’s own account of the events—an account the dis-
trict court was entitled to reject as not credible. Thus, there
was no reversible error in the use of the police report; with
or without it, there was ample evidence to show that Ford
had committed a substantial battery against Rahoi.
III
Ford next argues that his sentence exceeds the statutory
maximum. We review statutory interpretation questions de
novo. See United States v. Thornton, 539 F.3d 741, 745 (7th Cir.
2008). Title 18 U.S.C. § 3583 limits the length of the prison
term a court may impose after it revokes a defendant’s su-
pervised release. In general, a court may impose a sentence
equal to the length of the supervised release authorized by
statute for the offense that “resulted in” the supervised re-
lease that is currently being revoked. See 18 U.S.C.
§ 3583(e)(3). There are, however, some limitations on the
court’s choice of sentence. For example, a prison sentence
following a revocation of a supervised release term that was
imposed for a class A felony cannot exceed five years, while
a prison sentence after revocation of supervised release im-
No. 14-3452 9
posed in connection with a class B felony cannot exceed
three years. Section 3583(e)(3) reads in full:
The court may … revoke a term of supervised
release, and require the defendant to serve in
prison all or part of the term of supervised re-
lease authorized by statute for the offense that
resulted in such term of supervised release
without credit for time previously served on
postrelease supervision, if the court, pursuant
to the Federal Rules of Criminal Procedure ap-
plicable to revocation of probation or super-
vised release, finds by a preponderance of the
evidence that the defendant violated a condi-
tion of supervised release, except that a de-
fendant whose term is revoked under this par-
agraph may not be required to serve on any
such revocation more than 5 years in prison if
the offense that resulted in the term of super-
vised release is a class A felony, more than 3
years in prison if such offense is a class B felo-
ny, more than 2 years in prison if such offense
is a class C or D felony, or more than one year
in any other case.
18 U.S.C. § 3583(e)(3).
Ford’s argument centers on the phrase “the offense that
resulted in the term of supervised release.” He contends that
“offense” in this context refers to whatever action immedi-
ately caused the defendant’s most recent term of supervised
release, and thus does not always signify the offense for
which supervised release was initially imposed. Consider an
example: A defendant commits a class A felony and is sen-
10 No. 14-3452
tenced to imprisonment followed by supervised release. Af-
ter release from prison, but during her term of supervised
release, the defendant commits a class B felony, which con-
stitutes a violation of the supervised release. The “offense
that resulted in” the supervised release was the class A felo-
ny; thus, the maximum term of imprisonment that the court
can impose upon revocation is five years, under 18 U.S.C.
§ 3583(e)(3). The court imposes a prison sentence and a new
term of supervised release. While on the second term of su-
pervised release, the defendant commits a class C felony,
another violation of her supervised release conditions. The
court again must look to “the offense that resulted in the
term of supervised release” to determine the statutory max-
imum sentence upon revocation. Ford argues that this of-
fense is the class B felony, rather than the class A felony, be-
cause the class B felony is what directly “resulted in” the de-
fendant’s second supervised release term. Thus, in this case,
Ford contends that the court should look to his 2013 viola-
tion of supervised release conditions, rather than his original
2001 conviction, in order to determine the maximum prison
term under § 3583(e)(3).
For support, Ford contrasts § 3583(e)(3) with § 3583(h).
The latter provision, which limits the length of new terms of
supervised release that a court can impose after it revokes a
term of supervised release, uses the phrase “offense that re-
sulted in the original term of supervised release.” 18 U.S.C.
§ 3583(h) (emphasis added) (“The length of such a term of
supervised release shall not exceed the term of supervised
release authorized by statute for the offense that resulted in
the original term of supervised release.”). Because
§ 3583(e)(3)—unlike § 3583(h)—omits the word “original,”
Ford argues, it must be referring to the defendant’s most re-
No. 14-3452 11
cent offense, i.e., the one that most immediately caused the
defendant’s current term of supervised release.
While we give Ford full marks for creativity, his reading
of § 3583(e)(3) makes hash of the larger statutory scheme.
The provision refers to “offense[s],” but violations of
supervised release need not be criminal in nature: a
defendant can violate the terms of his supervised release
without committing a statutorily defined crime. See, e.g.,
United States v. Marvin, 135 F.3d 1129, 1131–32 (7th Cir. 1998)
(discussing violation of special condition not to obtain loans
or open new bank accounts). Thus, § 3583(e)(3)’s reference to
“offense” must signify the offense for which the defendant
was initially placed on supervised release.
Ford counters that the term “offense” encompasses non-
criminal violations of supervised release. Congress, he says,
would have used the word “conviction” if it had wanted to
refer to the original crime. But he points to no statute or case
using the term “offense” in such a broad way. To the contra-
ry, federal criminal statutes treat the word as referring to ex-
pressly criminal activity. See, e.g., 18 U.S.C. § 16 (defining
“crime of violence” to mean an “offense” with certain char-
acteristics”); id. § 921(a)(33)(A) (same for “misdemeanor
crime of domestic violence”). The titles of various provisions
of the criminal code confirm this interpretation. See, e.g., id.
§ 19 (section titled “Petty offense defined”); id. § 24 (section
titled “Definitions relating to Federal health care offense”);
id. § 1341 et seq. (chapter titled “Mail Fraud and Other Fraud
Offenses”); id. § 3271 et seq. (chapter titled “Extraterritorial
Jurisdiction over Certain Trafficking in Persons Offenses”).
Moreover, the classification system to which § 3583(e)(3)
refers would make little sense if “the offense that resulted in
12 No. 14-3452
the term of supervised release” could be a non-criminal vio-
lation of supervised release. Section 3583(e)(3) sets the max-
imum terms of imprisonment based on the letter grade of
this “offense.” If an offense is not classified by a letter grade
in the provision that defines it, it is classified at 18 U.S.C.
§ 3559 according to its maximum term of imprisonment. See
18 U.S.C. § 3559(a) (defining offenses with maximum term of
life imprisonment as class A felonies, offenses with maxi-
mum term of 25 years or more as class B felonies, and so on).
Under Ford’s interpretation, it is unclear how to classify a
non-criminal violation of a supervised release condition; the
condition itself neither contains a letter grade classification
nor sets out a maximum term of imprisonment for its viola-
tion. In addition, § 3559 applies only to sentences for “a de-
fendant who has been found guilty of an offense described
in any Federal statute.” 18 U.S.C. § 3551(a). Even if we were
to credit Ford’s interpretation of offense as encompassing
violations of supervised release (which we do not), a de-
fendant is not “found guilty” of such a violation. Rather, the
court must find by a preponderance of the evidence that the
defendant committed the violation. Ford’s last-ditch attempt
is to point to § 3583(h), the provision allowing courts to re-
impose terms of supervised release upon revocation, as a
stand-in for the substantive offense. But this provision mere-
ly authorizes a court to impose subsequent punishment; it
does not define an offense, and it does not set a statutory
maximum term of imprisonment.
In all, Ford’s interpretation does nothing but create con-
fusion and ambiguity in a statutory scheme that, under the
normal reading of the language, works reasonably well. The
phrase “the offense that resulted in the term of supervised
release” refers to the offense for which the defendant was
No. 14-3452 13
initially placed on supervised release. For Ford, this is his
2001 conviction for conspiracy to possess with intent to dis-
tribute crack and powder cocaine. That offense carries a
statutory maximum sentence of life imprisonment, see 21
U.S.C. § 841(b)(1)(A), and is thus a class A felony. See 18
U.S.C. § 3559(a)(1). The maximum allowable prison term
upon revocation in connection with such an offense is five
years. See id. § 3583(e)(3). Since April 2003, when the
PROTECT Act took effect, see Pub. L. No. 108-21, 117 Stat.
650 (2003), the maximum term of imprisonment starts anew
with each revocation of supervised release. See U.S.
SENTENCING COMM’N, FEDERAL OFFENDERS SENTENCED TO
SUPERVISED RELEASE 42–43 (July 2010). Ford’s new sentence
upon his second revocation could thus have been as much as
60 months, well above the 36 months he received.
IV
Ford’s final claim is that the district court committed pro-
cedural error by not adequately considering the relevant
sentencing factors. Our review of a sentence for supervised
release violations is “highly deferential.” United States v.
Jones, 774 F.3d 399, 403 (7th Cir. 2014). Nevertheless, the dis-
trict court is required to consider the U.S. Sentencing Guide-
lines policy statements and relevant sentencing factors. The
court must “say something that enables the appellate court to
infer that he considered both sources of guidance,” United
States v. Robertson, 648 F.3d 858, 859–60 (7th Cir. 2011),
though it “need not consider the § 3553 factors in check-list
form.” Jones, 774 F.3d at 404. When revoking a term of su-
pervised release, 18 U.S.C. § 3583(e) requires the court to
consider several—but not all—of the factors set forth in 18
U.S.C. § 3553(a): (a)(1) (the nature and circumstances of the
14 No. 14-3452
offense and the history and characteristics of the defendant),
(a)(2)(B)–(D) (the need for the sentence to deter criminal
conduct, protect the public from further crimes, and provide
the defendant with training and treatment), (a)(4) (the guide-
lines range), (a)(5) (the guidelines policy statements), (a)(6)
(the need to avoid unwarranted sentencing disparities), and
(a)(7) (the need to provide restitution to victims).
The district court’s consideration of these points was sat-
isfactory. The judge noted that he had taken into account “all
of the factors” under § 3553(a)(2) and singled out the need to
protect the community from Ford’s “outbursts.” He invoked
deterrence when he observed that supervision had not been
effective for Ford and that the Probation Office would be put
to better use by “working with someone who is more sus-
ceptible to behavior modification.” These statements, along
with the discussion of Rahoi’s injuries, show that the judge
considered the nature of the crime and Ford’s history and
characteristics. The judge looked to the guidelines range and
policy statements when he discussed the appropriate sen-
tencing range, and he addressed the need to impose restitu-
tion. While he did not specifically mention the need to pro-
vide Ford training and treatment or the goal of avoiding sen-
tencing disparities, he was not required to run through each
factor one by one. Overall, he said enough.
Ford also contends that the court impermissibly consid-
ered factor (a)(2)(A) when it discussed the extent of Rahoi’s
injuries. This factor, which is not listed in § 3583(e), describes
the need “to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense.” 18 U.S.C. § 3553(a)(2)(A). It is not clear that the
court was relying specifically on (a)(2)(A) in its statements; it
No. 14-3452 15
never specifically mentioned that factor, and, as noted
above, the discussion of Rahoi’s injuries easily fits within
factor (a)(1). But even if it did rely to some extent on the se-
riousness of Ford’s offense, any such reliance was not error
under this circuit’s law. See United States v. Clay, 752 F.3d
1106, 1108 (7th Cir. 2014) (siding with the majority of circuits
to find that court may address factor (a)(2)(A) when revok-
ing supervised release “so long as the district court relies
primarily on the factors listed in § 3583(e)”). The court
placed little weight on factor (a)(2)(A); instead, it relied on
other factors that are included in § 3583(e), such as the
guidelines range, deterrence, protection of the community,
and the need for restitution. Thus, the court’s references to
Rahoi’s injuries did not taint the validity of Ford’s sentence.
V
Ford has waived his objection to the admission of Smith’s
statements, and, even if he merely forfeited it, he cannot
show plain error. The statutory maximum prison sentence
upon revocation of supervised release was properly based
on the initial offense; thus, Ford’s 36-month sentence was
permissible. Finally, the district court did not commit proce-
dural error in sentencing Ford. We therefore AFFIRM both the
district court’s order finding that Ford violated the condi-
tions of his supervised release and the court’s sentence of 36
months in prison.