United States v. Mitchell McGhee ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 29, 2021*
Decided July 7, 2021
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21-1160
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Central District of Illinois.
v. No. 19-10034-001
MITCHELL MCGHEE, James E. Shadid,
Defendant-Appellant. Judge.
ORDER
After spending over a decade in prison for drug crimes, Mitchell McGhee
violated the terms of his supervised release by, among other things, using a controlled
substance. The district court revoked his supervision and sentenced him to a year and a
day in prison, followed by six years’ supervision. McGhee now appeals, asserting
primarily that the court erred in imposing the new sentence. Because the court made no
sentencing errors, we affirm.
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 21-1160 Page 2
McGhee was convicted by a jury in 2007 of conspiring to distribute at least 500
grams of cocaine and 50 grams of crack cocaine, 21 U.S.C. §§ 841(a)(1), 846, and
possessing cocaine with intent to distribute it. Id. § 841(a)(1). The district court imposed
a life sentence—the statutory minimum for the conspiracy count at the time based on
McGhee’s prior convictions for felony drug offenses. 21 U.S.C. § 841(b)(1)(A)(iii) (2006).
We affirmed the convictions and sentence. United States v. Jones, 600 F.3d 847 (7th Cir.
2010). Nearly a decade later, the district court reduced McGhee’s sentence under § 404
of the First Step Act to ten years’ imprisonment and eight years’ supervision.
See 21 U.S.C. § 841(b)(1)(B)(iii) (2018). McGhee was released immediately and began
serving his term of supervision.
Within months of his release, McGee repeatedly violated the terms of his
supervision. In short order, he tested positive for marijuana, refused to attend
substance-abuse treatment, and failed to timely inform his probation officer of an arrest
for criminal trespass. After the arrest, the probation office petitioned to revoke
McGhee’s term of supervised release. McGhee was released on bond pending a
revocation hearing.
Eight months later, McGhee was arrested for battery and aggravated criminal
sexual assault in connection with allegations that he had abused his girlfriend’s
daughter. Based on this arrest, the probation officer filed a supplemental petition
seeking revocation of McGhee’s bond. A magistrate judge found probable cause to
believe that McGhee had committed battery and aggravated criminal sexual assault and
ordered him detained pending the revocation hearing.
At the hearing, McGhee admitted that he violated two of the terms of his
supervision (using and possessing marijuana, and failing to timely notify his probation
officer of his arrest). Based on those admissions, the court revoked his release. The court
then explained that a prison term was necessary to address McGhee’s pattern of
obstinance, dishonesty, noncompliance, and multiple arrests while on supervision. The
court first calculated a sentencing range of 21 to 27 months (based on the government’s
assertion that the marijuana-possession offense should be treated as a Grade B
violation, together with McGhee’s criminal history category of VI). But the government
then proposed a Grade C range—8 to 14 months—based on the difficulties faced by
someone like McGhee who had spent much of life in jail and was “struggling to re-enter
society.” The court agreed and imposed a sentence of a year and a day in prison (the
No. 21-1160 Page 3
extra day allowing McGhee to receive good-time credit) followed by six years’
supervision.1
On appeal, McGhee asserts without elaboration that his year-and-a-day sentence,
combined with the six years’ supervision, unlawfully exceeds the term authorized by
21 U.S.C. § 841(b)(1)(C). But the revocation statute, 18 U.S.C. § 3583(e)(3), authorizes
prison terms of up to five years on the conspiracy count (a Class A felony), see 21 U.S.C.
§ 841(b)(1)(B); 18 U.S.C. § 3559(a)(1), and up to three years on the possession-with-
intent-to-distribute count (a Class C felony). See 21 U.S.C. § 841(b)(1)(C); 18 U.S.C.
§ 3559(a)(3). As for supervised release, 18 U.S.C. § 3583(h) allows a court to impose up
to the maximum term that could have been imposed on the original offense minus any
new term of imprisonment. Here, the statutes of conviction authorize a lifetime of
supervision, so the six-year term was within the permissible range. See 21 U.S.C.
§ 841(b)(1)(B), (b)(1)(C); see also United States v. Shorty, 159 F.3d 312, 315 n.6 (7th Cir.
1998) (observing that § 841(b)(1) subsections set a “floor requirement” for term of
supervised release, “leaving the ceiling open”).
To the extent McGhee argues that his new sentence is too high, that argument
fails. As required under 18 U.S.C. § 3583(e), the district court considered the pertinent
§ 3553(a) sentencing factors, including the nature and circumstances of the numerous
violations (cataloging McGhee’s frequent lies to his probation officer, arrests, and drug
use) and the need to deter McGhee from further criminal conduct. Nothing in the
record shows that his year-and-a-day sentence—which was well below the guidelines
range of 21 to 27 months for a Grade B violation—is plainly unreasonable.
See United States v. Raney, 842 F.3d 1041, 1043 (7th Cir. 2016).
McGhee also challenges his prehearing detention, urging that the magistrate
judge improperly revoked his bond based on crimes—aggravated criminal sexual abuse
and battery—for which he never was charged. But that claim became moot once he was
convicted on the charges for which he was detained. See United States v. Sanchez-Gomez,
138 S. Ct. 1532, 1540–41 (2018); Jackson v. Clements, 796 F.3d 841, 843 (7th Cir. 2015).
Finally, McGhee contests the term of supervised release imposed on his
underlying conviction, pointing to 21 U.S.C. § 841(b)(1)(C) to argue that his eight-year
1 McGhee apparently has finished serving his new term of imprisonment, but his
appeal is not moot because he remains under supervision. See United States v. Corner,
967 F.3d 662, 667 (7th Cir. 2020).
No. 21-1160 Page 4
term of supervision exceeded the six years authorized. But a defendant may not
challenge his underlying conviction or sentence in a revocation proceeding.
United States v. St. Clair, 926 F.3d 386, 388 n.2 (7th Cir. 2019) (citing cases).
AFFIRMED