United States v. Michael Dill

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1425
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MICHAEL DILL
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 13-CR-11-JPS — J. P. Stadtmueller, Judge.
____________________
ARGUED JULY 8, 2015 — DECIDED AUGUST 25, 2015
____________________
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Michael Dill was placed on su-
pervised release after serving 10 years in federal prison for
bank robbery. Twice now he has been sent back to prison for
committing multiple violations of conditions of release, this
latest time for 14 months. In this appeal from the second
revocation of supervised release, Dill contends that the dis-
trict judge erred by having decided irrevocably before the
revocation hearing that he would impose a new term of at
2 No. 15-1425
least 12 months in prison—the term Dill received after the
first revocation—without first considering the applicable
sentencing guidelines, his arguments in mitigation, or the
pertinent factors under 18 U.S.C. § 3583(e)(3) and § 3553(a).
We affirm. The judge had obviously prepared for the deci-
sion and had some strong views at the beginning of the hear-
ing. We do not think, however, that the judge’s preparation
and thought crossed the line into an irrevocable commitment
such that his mind was closed to what happened in the hear-
ing.
I. Factual and Procedural Background
From December 2000 through March 2001, Dill and a
confederate robbed several Chicago-area banks of over
$21,000. Dill was caught and pled guilty in federal court to
two counts of bank robbery under 18 U.S.C. § 2113(a). He
was sentenced in the Northern District of Illinois to ten years
in prison followed by a three-year term of supervised re-
lease.
Dill was released from prison in April 2012, and his su-
pervision was transferred to the Eastern District of
Wisconsin. Within a year, he had relapsed on drugs and vio-
lated four conditions of his supervised release: He missed
drug tests and counseling appointments, tested positive for
morphine and marijuana, traveled outside the judicial dis-
trict without permission, and failed to comply with location-
monitoring requirements.
The district court convened a revocation hearing in June
2013 but did not revoke Dill’s supervised release, instead
continuing the proceedings to give Dill “another chance” to
comply with his conditions of supervised release. But the
No. 15-1425 3
court also warned Dill that any future violation would result
in a 15-month term of reimprisonment.
One month later Dill again tested positive, this time for
opiates, and he admitted frequent use of heroin. The district
court reconvened the revocation hearing and calculated a
reimprisonment range of 8 to 14 months based on Dill’s
Grade C violations and Category VI criminal history. See
U.S.S.G. § 7B1.4(a). Dill explained that he had started using
drugs again after his release from prison as a way of coping
with the deaths of his daughter and mother during his incar-
ceration. But he emphasized his positive work history, stable
residence, and ongoing support from his girlfriend, and he
asked the court to impose a reimprisonment term of time
served (36 days) plus a requirement of psychological coun-
seling. The court, though, expressed skepticism that counsel-
ing—which had not worked before—would sufficiently de-
ter Dill. Despite the earlier threat of a 15-month term, the
court imposed a 12-month term of reimprisonment, along
with an additional 18 months of supervised release. Dill did
not appeal that decision.
Dill completed the new prison term. Just seven months
after his release, Dill was before the district court again, hav-
ing accrued five more violations of his supervised release.
He had: missed eight random drug tests and two counseling
sessions; tested positive for morphine, codeine, and cocaine;
committed two traffic violations; failed to notify his proba-
tion officer after contact with law enforcement; and failed to
make regular restitution payments. Dill’s attorney submitted
a letter asking the court to continue Dill’s supervision, again
emphasizing his positive employment history and stable
romantic relationship and describing Dill’s efforts at combat-
4 No. 15-1425
ting his addiction. The court rejected Dill’s request for con-
tinued supervision. The district judge acknowledged that
“addiction is perhaps central to the problem here” but add-
ed:
most offenders, including those with addiction,
at some point, particularly after having spent
the length of time that [Dill] did in prison, find
it in their heart and in their outlook to put this
aspect of their life behind [them], and take ad-
vantage of all of the programming and coun-
seling that’s available.
When offenders choose not to conform their conduct to the
law, the court continued, “there is only one alternative, and
that is—because we, as a society, cannot have individuals in
our midst who are either in a workplace, or in a home envi-
ronment, or worse yet behind the wheel [of] a vehicle, high
on drugs.” So, the court concluded, there was “no other al-
ternative for Michael Dill anymore, other than to send [him]
back to prison.”
The district court next turned to the length of that term of
reimprisonment. Though the court recognized that the poli-
cy statements in Chapter 7 of the Sentencing Guidelines
called for 8 to 14 months, the court explained that Dill’s term
was “not going to be a year, and it’s not going to be two
years,” but instead would “probably” be “something in-
between” because, the court reasoned, “when you violate the
conditions of supervised release, the penalties get ratcheted
up.” The court thus rejected the government’s recommenda-
tion for 8 to 12 months and the defendant’s request for 6
months, emphasizing that Dill’s drug use made him a dan-
ger to society. And, the court repeated, its “options” were to
No. 15-1425 5
impose a term “of not less than a year, and no more than two
years.” The court concluded that a 14-month term of reim-
prisonment was the “only fair, just, and reasonable sen-
tence.”
After the district court imposed a prison term of that
length, the prosecutor asked the court to clarify whether it
had considered the mitigating arguments from defense
counsel’s letter and whether the court understood that the
term could be less than 12 months, given the advisory range
of 8 to 14 months. The court responded that the Sentencing
Guidelines “were never mandatory in supervised release
revocation proceedings.” The judge added:
I’m not going to reimpose a lower or same sen-
tence that didn’t work the first time. In other
words, the consequences are greater. And so
they weren’t as great as perhaps they could
have been, because I could have imposed a
sentence of 24 months. In fact, some might
suggest that that should have been the sen-
tence.
The judge next turned to Dill’s arguments in mitigation.
Though he had considered those arguments, the judge said,
he was not persuaded to impose a shorter prison term:
[I]t was very clear at the outset, we’ve been
through this once with Mr. Dill. It didn’t work,
and there are consequences. As I stated earlier,
if this were Mr. Dill’s first revocation proceed-
ing, it might be different. But it wasn’t. So as
they say, it is what it is. And we can’t turn back
the hands of mother time, nor put the genie
6 No. 15-1425
back in the bottle. And Mr. Dill has no one to
look to other than himself. And for an individ-
ual with the significant criminal history and
the significant prior terms of imprisonment, in-
cluding a 12 month sentence on supervised re-
lease, it ill behooves either [him] or anyone on
his behalf to suggest that we set these viola-
tions aside and put him back on the street. That
would be a total dereliction of any judicial off-
icer’s responsibilities in enforcing and ensuring
an appropriate, fair, just, and reasonable dispo-
sition.
Dill did not object to any aspect of the revocation proceed-
ing.
II. Analysis
Few duties of a United States District Judge are as chal-
lenging or involve so much discretion as sentencing. At least
where statutory mandatory minimum sentences do not dic-
tate a decision, the Sentencing Guidelines and the key stat-
utes on sentencing direct the judge to try to balance conflict-
ing goals of sentencing. See 18 U.S.C. §§ 3553(a) & 3583(e)(3).
The final decision cannot be reduced to a formula. The judge
must exercise judgment about the individual case that is of-
ten not fully explainable in terms of deductive logic.
Dill’s appeal here is aimed at one of the inherent tensions
in sentencing. The judge must prepare for a sentencing deci-
sion by reviewing the facts of the offense or violation and the
history and characteristics of the offender and by consider-
ing the available choices. Rarely does a judge walk into a
sentencing hearing without a fairly clear idea of an appro-
No. 15-1425 7
priate sentence. At the same time, the sentencing hearing it-
self is an essential step. Judges must keep their minds open
to new facts, new arguments, and new choices.
If the judge communicates those preliminary thoughts
about an appropriate sentence to counsel near the beginning
of the hearing, it can often help counsel and the defendant
know what the judge is most concerned about and address
their arguments to those points. On the other hand, if the
judge is not careful with the language used, then counsel
and the parties and a reviewing court can get the impression
that the judge’s mind was already made up no matter what
might happen in the sentencing hearing.
Dill’s sole contention on appeal is that the district court
failed to maintain this balance in his case by refusing im-
properly to consider a second reimprisonment term below
12 months, the term he had received after his first revoca-
tion. Dill points to the court’s statement at the beginning of
the hearing—that the court was considering a term between
12 and 24 months—as evidence that a term of at least 12
months had been decided in advance.
As Dill points out, we have cautioned district judges not
to predetermine the appropriate punishment before conven-
ing a revocation hearing. See United States v. Smith, 770 F.3d
653, 655 (7th Cir. 2014); United States v. Tatum, 760 F.3d 696,
697 (7th Cir. 2014). District judges must approach revocation
and sentencing hearings with an open mind and consider
the evidence and arguments presented before imposing pun-
ishment. See United States v. Pulley, 601 F.3d 660, 665 (7th Cir.
2010); United States v. Pless, 982 F.2d 1118, 1129 (7th Cir.
1992).
8 No. 15-1425
At the same time, a judge who begins the hearing with-
out any preliminary idea of appropriate sanctions is proba-
bly not prepared. Having such an idea does not disable the
judge from making the sentencing decision. See Pulley, 601
F.3d at 665; Pless, 982 F.2d at 1129–30; see also Fleenor v.
Farley, 47 F. Supp. 2d 1021, 1052–53 (S.D. Ind. 1998) (sentenc-
ing judge’s statement to counsel at start of hearing that he
was leaning toward imposing death sentence meant that
judge was prepared, not that he had made up his mind unal-
terably), aff’d, 171 F.3d 1096 (7th Cir. 1999).
Taken in isolation, some of the district judge’s statements
here could be read to suggest that he did not come into the
hearing with an open mind, including his statement that the
court’s “options” for Dill’s punishment were a term “of not
less than a year, and no more than two years.” The judge al-
so used some language that could be read as minimizing the
discretion he actually had, saying “there is no other way,”
referring to the sentence he was “obliged” to impose, and
saying that the sentence imposed was “the only fair, just,
and reasonable sentence.” Such language of necessity is not
literally true but should not be understood literally. A judge
pronouncing sentence often explains to a defendant how the
defendant has earned the sentence by his own choices,
which have forced the judge to impose a just punishment.
Such language does not mean that the judge has not given
thoughtful consideration to the decision.1
1 In some instances a judge’s language of obligation or necessity may
be best understood as an effort by a judge who must make a difficult de-
cision to explain it in ways that minimize the discretion and thus the
judge’s personal responsibility for the final decision, or perhaps to tie the
final decision to a reasonable philosophy or rationale. If the judge goes
No. 15-1425 9
The final decision must be made and announced in the
hearing itself. Explanations are more often extemporaneous
than carefully scripted. Explanations seek to weigh what
cannot be measured and to balance competing goals as diffi-
cult as squaring a circle. For all these reasons, we must “be
careful when a judge has made a spontaneous sentencing
statement not to impose an unrealistically literal interpreta-
tion on his words.” Tatum, 760 F.3d at 697.
From the record as a whole, it is evident that the judge
gave careful and individual consideration to Dill’s case. He
did not “disable himself” from considering a lower term be-
fore hearing all of the relevant information. See id.; Smith,
770 F.3d at 655 (reasoning that district court had not commit-
ted itself in advance to punishment announced by predeces-
sor but instead had properly considered previous revocation
in determining appropriate term of reimprisonment); United
States v. Keatings, 787 F.3d 1197, 1204 (8th Cir. 2015) (conclud-
ing that district court had considered § 3553(a) factors and
did not confine itself to earlier threat of 10-year prison term).
The district judge announced at the start of the hearing
that he would “probably” impose a term of reimprisonment
between one and two years in light of the previous revoca-
tion. See Smith, 770 F.3d at 655 (explaining that fact of previ-
too far in denying responsibility for the decision, to the point of signaling
the judge does not understand his or her power, an appellate court may
reverse because the sentence was based on a legal misunderstanding.
This occurred (very rarely) when the Sentencing Guidelines were man-
datory, where defendants sought downward departures and judges in-
dicated they did not understand their power to depart. See United States
v. Poff, 926 F.2d 588, 591 (7th Cir. 1991) (en banc) (discussing issue but
finding no error). There was no such misunderstanding here.
10 No. 15-1425
ous revocations was “something the judge was free, maybe
required, to consider” in revocation proceedings). Before
announcing the 14-month term, the judge acknowledged the
Chapter 7 policy statements and assessed Dill’s new viola-
tions and the danger he posed to society. See United States v.
Phillips, 791 F.3d 698, 702 (7th Cir. 2015) (explaining that dis-
trict court must justify term of reimprisonment “in light of
the statutory sentencing factors and any relevant policy
statements in the guidelines”); Tatum, 760 F.3d at 697 (in-
structing sentencing courts to consider “number and gravi-
ty” of supervised-release violations before determining
whether to revoke supervision).
The general principle that the judge applied here, that he
would not impose a lighter sentence for a second set of com-
parable violations, is both understandable and reasonable.
Yet the judge clearly made an individualized decision, ta-
king into account Dill’s conduct both recent and remote, and
his history and characteristics, including his long-term drug
addiction. The judge wisely chose not to impose a new
round of supervised release after this latest prison term.
Moreover, the judge had shown his flexibility by previ-
ously imposing a 12-month term of reimprisonment despite
having warned Dill that another violation would produce a
15-month term. The judge was not so committed to a sen-
tence of over 12 months, regardless of Dill’s arguments at the
hearing, that the judge could not preside fairly over the re-
vocation.
AFFIRMED.