United States v. Thomas M. Smith ( 2019 )


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  •                               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    The allegation that Smith failed to pay the fines was withdrawn.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.
    

Document Info

Docket Number: 18-3265

Judges: Bauer

Filed Date: 7/11/2019

Precedential Status: Precedential

Modified Date: 7/12/2019