United States v. Dakota Childs ( 2022 )

In the
United States Court of Appeals
‘For the Seventh Circuit
No. 21-3206
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAKOTA L. CHILDS,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:17-cr-30038-SMY-1 — Staci M. Yandle, Judge.
ARGUED APRIL 21, 2022 — DECIDED JULY 14, 2022
Before EASTERBROOK, ROVNER, and BRENNAN, Circuit Judges.
ROVNER, Circuit Judge. Dakota Childs appeals from the
sentence he received on revocation of supervised release. He
asserts that the twenty-four month term of imprisonment was
procedurally and substantively unreasonable. We affirm.
2 No. 21-3206
I.
In 2017, Childs pled guilty to one count of possession of a
firearm by a felon. The district court sentenced him to thirty-
seven months’ imprisonment, followed by twenty-four months
of supervised release. In July 2019, Childs began serving his
first term of supervised release. Childs is addicted to alcohol
and controlled substances, and so in addition to the regular
mandatory and administrative conditions (which included
prohibitions on the possession or use of controlled substances),
the court imposed special conditions requiring Childs to
abstain from alcohol, to participate in treatment for drug and
alcohol dependence, and to participate in mental health
assessment and treatment services. Childs’ first term of
supervised release was marked by numerous violations of the
conditions imposed. Within two months, his probation officer
filed a petition to revoke release for resisting a peace officer,
two charges of reckless driving, driving under the influence of
alcohol, other traffic offenses, possession of marijuana, retail
theft, and use of alcohol. The court revoked the first term of
supervised release and sentenced Childs to a fourteen-month
term of imprisonment, followed by thirty-six months of
supervised release.
The second term of supervised release commenced on
February 11, 2021. The special conditions included a prohibi-
tion on the possession or use of alcohol or other intoxicants,
participating in a remote alcohol testing program for six
months, participating in treatment for drug and alcohol
dependence, submitting to drug testing, and participating in
mental health assessment and treatment. In mid-May, Childs’
probation officer submitted a noncompliance report to the
No. 21-3206 3
court, noting that Childs had missed remote alcohol tests on at
least a dozen occasions, had tested positive for alcohol twice,
and had multiple tests rejected for lack of facial recognition. As
a result, Childs was required to wear an alcohol monitor on his
ankle.
Two months later, the probation officer submitted another
noncompliance report, alleging that Childs tested positive for
alcohol and that his ankle monitor sent a “tamper alert” at least
twice. On the same date as a tamper alert, June 22, 2021, police
were called to Childs’ home where his best friend had over-
dosed on controlled substances. This violated an administra-
tive condition prohibiting Childs from knowingly associating
with an individual who unlawfully possessed a controlled
substance. The next day, Childs tested positive for metham-
phetamine, cocaine, and marijuana. His probation officer
referred him for residential and outpatient drug treatment.
On September 15, 2021, his probation officer filed a motion
to revoke his second period of supervised release. In addition
to the earlier reported violations, the motion noted that police
responded to Childs’ residence on August 4, 2021, after he
overdosed on controlled substances. On August 9, when he
reported for inpatient treatment, he tested positive for alcohol,
fentanyl, methamphetamine, and marijuana. On September 9,
he was discharged from inpatient treatment for testing positive
for alcohol and marijuana in the course of that treatment. He
was again fitted with an alcohol monitor which reported
alcohol use on September 12 and 13.
The probation officer filed an amended motion to revoke
supervised release on September 21, 2021. This petition noted
4 No. 21-3206
that Childs had overdosed again, on September 16, and that he
was found in possession of a switchblade knife and fentanyl
capsules at that time. At a hospital, he tested positive for
fentanyl. During the second period of supervised release,
Childs had also committed traffic offenses, including driving
while unlicensed and uninsured, disregarding a stop sign, and
failure to use a seatbelt. He had also left the jurisdiction
without permission, failed to submit multiple written reports
to his probation officer, failed to report to his probation officer,
and failed to report his contacts with police officers.
The district court held a hearing at which Childs pled guilty
to all of the charged violations. The only contested issue was
the sentence. The government asked the court to impose a
sentence of ten months’ imprisonment followed by no addi-
tional supervision. The government noted in mitigation that
Childs had taken responsibility for his many violations. In
aggravation, the government pointed out that this was Childs’
second revocation and that he began violating the conditions
shortly after being released a second time. The government
urged the court to consider deterrence and contended that
Childs was a danger to others because of his driving violations
and his continued drug and alcohol use. He was also a danger
to himself as evidenced by his overdoses. Childs’ lawyer asked
the court to impose a term of seven months’ imprisonment for
two reasons. First, he noted that Childs had accepted responsi-
bility and in fact had admitted to conduct for which he
expected to be charged in state court. Second, counsel argued
that a lengthier term of imprisonment would serve no purpose
because, in light of Childs’ addictions, “[i]t really is all on him
at this point.” According to counsel, no amount of prison
No. 21-3206 5
would change the outcome unless Childs did what he needed
to do to address his addictions. Counsel argued that a short
sentence would allow Childs to “get on with” the steps he
needed to take to overcome his addictions.
The court remarked that Childs was repeatedly back before
the court, that at the age of thirty he had amassed a significant
criminal history, and that he had engaged in dangerous
conduct during his first period of supervised release that
included driving while under the influence of alcohol. The
court noted the many opportunities he had been given for
treatment that he had not successfully completed, concluding
that no further efforts would work unless Childs committed
himself to the process, which in the court’s view, he had not
done at the time of sentencing. The court then focused on
deterrence and the need to protect the public from Childs’
future crimes. The court noted that Childs had previously
operated a vehicle under the influence of drugs and alcohol,
and had recently overdosed and also had a friend overdose in
his presence, at his home. The court concluded that, “in his
current mentality and with his current approach to life,” he
posed a significant threat to the public. The court also re-
marked that the violations went beyond Administrative
Conditions and that the probation office had exhausted every
tool it had to reintegrate Childs into the community and help
him with rehabilitation, but he had demonstrated that he was
not amenable to reintegration or rehabilitation. Citing the
offenses, Childs’ criminal history, and the need for deterrence
and protection of the public, the court invoked the PROTECT
Act and sentenced Childs to twenty-four months’ imprison-
6 No. 21-3206
ment with no further term of supervised release. Childs
appeals.
II.
On appeal, Childs contends that the court made two errors.
First, Childs complains that the court committed procedural
error in finding that Childs was a danger to others because the
court relied on unreasonable inferences in reaching that
conclusion. Second, Childs maintains that the sentence was
substantively unreasonable because the court failed to give
sufficient weight to the fact that he had nearly died during a
drug overdose, which he contends is a far greater motivator for
him to overcome addiction than additional prison time would
be.
Our review of a sentence imposed in a revocation proceed-
ing is highly deferential. United States v. Boultinghouse, 784 F.3d
1163, 1177 (7th Cir. 2015). We will sustain the sentence so long
as it is not “plainly unreasonable.” Boultinghouse, 784 F.3d at
1177; United States v. Kizeart, 505 F.3d 672, 673–75 (7th Cir.
2007). A district judge who revokes a defendant’s supervised
release and imposes a term of imprisonment “must consider
both the Guidelines policy statements that prescribe the
penalties for supervised release violations, see U.S.S.G. Chapter
7, Part B, and 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)[.]” Boultinghouse, 784 F.3d at
1177. The judge must also “say something that enables the
appellate court to infer that [she] considered both sources of
guidance.” United States v. Robertson, 648 F.3d 858, 860 (7th Cir.
No. 21-3206 7
2011) (emphasis in original). “Otherwise, competent appellate
review is impossible.” Id.Our review of sentences for violations of the conditions of
supervised release is highly deferential because the Sentencing
Commission issued non-binding, advisory policy statements
rather than formal Guidelines to govern such sentences,
implying that the sentencing court should have more than
usual flexibility in sentencing for violations of conditions of
supervised release. Robertson, 648 F.3d at 859. The policy
statements set forth “Grades” of possible violations of the
conditions of supervised release, U.S.S.G. § 7B1.1, and recom-
mend a range of imprisonment based on the Grade of the
violations in combination with the defendant’s Criminal
History category. U.S.S.G. § 7B1.4.
In this case, the parties agreed that Childs’ most serious
violations were properly categorized as Grade B, that his
Criminal History category was III, and that the policy state-
ments recommended an imprisonment range of eight to
fourteen months. Childs does not dispute that his sentence was
within the maximum allowed by the PROTECT Act. He
complains only that the court based its sentence on unreason-
able inferences and that it was substantively unreasonable.
Specifically, Childs argues that there is no evidence in the
record that would allow the court to infer that he contributed
in any way to his friend’s overdose, and also no evidence that
his traffic offenses during his second period of supervised
release involved driving under the influence of drugs or
alcohol. These arguments misapprehend the standard of
8 No. 21-3206
review and mischaracterize the district court’s explanation of
the sentence.
Beginning with the traffic offenses, the court committed no
error in inferring that Childs posed a danger to the public.
Close in time to his new driving offenses, Childs was using
alcohol, methamphetamine, marijuana, cocaine and fentanyl.
He had previously driven under the influence of alcohol and
controlled substances. The court inferred that he imposed a
significant threat to the public because of the risk that he
would again combine driving with the consumption of alcohol
and controlled substances. That was an eminently reasonable
inference to draw from the undisputed facts.
Similarly, it was reasonable to infer that the public needed
to be protected from future crimes by Childs because of his
own overdoses and the overdose of his friend in his home.
Childs was prohibited from associating with others engaged in
criminal activity, including the possession of controlled
substances, and he pled guilty to doing so in the revocation
hearing. The day after his friend’s overdose, Childs himself
tested positive for methamphetamine, cocaine and marijuana.
Subsequent to his friend’s overdose, Childs himself twice
overdosed on controlled substances. In discussing the need to
protect the public from future crimes by Childs, after noting
that Childs posed a future risk of driving under the influence,
the court remarked, “He’s had a recent situation where not
only did he almost take himself out, but another individual
overdosed in his presence at his home. And so, there – Mr.
Childs, in his current mentality and with his current approach
to life, poses a significant threat to the public.” Contrary to
Childs’ claim on appeal, the court did not expressly infer that
No. 21-3206 9
he provided a place for his friend to consume drugs or that he
supplied the drugs to his friend. Instead, the court cited the
overdoses in concluding that Childs’ current approach to life
posed a significant threat to the public. In other words, the
court inferred that Childs had not in fact been deterred from
future criminal conduct by the near misses he experienced with
his own overdoses and that of his friend. There was nothing
plainly unreasonable in that analysis.
Childs’ remaining arguments fare no better. He contends
that the court’s “ten-month variance above the top of the
advisory guidelines range” was substantively unreasonable
and that the court failed to provide a sufficiently compelling
justification for the increase. But this was not a “Guidelines”
sentence and so labeling this sentence as a “variance” above
the Guidelines is a mischaracterization. A court is not required
to provide a “compelling” justification for imposing a sentence
above the recommendation of the non-binding policy state-
ments. Childs also faults the district court for failing to give
enough weight to his near-death experience during his second
overdose. The court here considered the facts of Childs’
violations, his criminal history, the relevant section 3553(a)
factors, and the policy statements, and then said enough about
the reasons for the sentence to provide us an adequate basis for
review. That was more than sufficient. We are not here to
reweigh the facts or second-guess the district court’s applica-
tion of the policy statements or section 3553(a) factors to those
facts. Because the sentence was not plainly unreasonable, we
affirm.
AFFIRMED.