United States v. Blake Sullivan

NONPRECEDENTIAL DISPOSITION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
Argued June 9, 2009
Decided June 15, 2009
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08-3168
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Illinois.
v. No. 4:02-cr-40030-JPG-001
BLAKE SULLIVAN, J. Phil Gilbert
Defendant-Appellant. Judge.
ORDER
Blake Sullivan challenges the term of reimprisonment imposed upon revocation of his
supervised release. Because the term is not “plainly unreasonable,” we affirm the judgment.
Sullivan pleaded guilty to conspiring to manufacture methamphetamine, see 21 U.S.C.
§§ 846, 841(a)(1). The drug quantity triggered a statutory minimum of 120 months’
imprisonment, see 21 U.S.C. § 841(b)(1)(A), but at sentencing in October 2003 the government
moved for a lower term because Sullivan had provided substantial assistance, see 18 U.S.C.
§ 3553(e); U.S.S.G. 5K1.1. The district court sentenced Sullivan to 96 months’ imprisonment
and 5 years’ supervised release. In February 2006, the district court granted the government’s
No. 08-3168 Page 2
motion to further reduce Sullivan’s prison sentence, see FED. R. C RIM. P. 35(b)(2), and reduced
the term by another 32 months.
Sullivan began serving his term of supervised release in January 2007. But during the next
year he admittedly used cocaine and methamphetamine, and in response the district court
modified the conditions of his release and placed him in a residential drug treatment center.
Sullivan, though, continued to use drugs and failed to participate in drug treatment as
directed, and in July 2008 his probation officer petitioned the district court to revoke his
supervised release. At the revocation hearing Sullivan admitted the allegations in the petition
to revoke. The district court advised him that, given his Grade B violations and his criminal
history category of III, the imprisonment range under the applicable policy statements was 8 to
14 months, see U.S.S.G. § 7B1.4(a), though the statutory cap was 60 months. The government
recommended a term at the high end of the range, but the district court decided to go further
and take back the reduction Sullivan had received under Rule 35 by adding another 32 months
to the 14 for a total of 46 months. The district court also imposed another two years of
supervised release to follow Sullivan’s term of reimprisonment.
On appeal, Sullivan essentially makes one argument: that 46 months is an excessive term
of reimprisonment. According to Sullivan, the term exceeds the maximum term allowed by
law and was imposed without notice or sufficient explanation. Sullivan also contends that
46 months is unduly harsh when compared to other cases, and that it was error to impose
new terms of imprisonment and supervised release with a combined length exceeding
60 months. Finally, Sullivan argues that the government’s unsuccessful attempt to introduce
evidence at the revocation hearing that he had committed further drug crimes not alleged in
the petition to revoke contributed to his lengthy term of reimprisonment.
The government argues that our review is limited to “plain error” because Sullivan did not
voice an objection after the district court revoked his supervised release and pronounced the
term of reimprisonment and the new term of supervised release. Language in United States v.
Harvey, 232 F.3d 585, 587 (7th Cir. 2000), literally supports the government’s argument, even
though the Harvey panel went on to evaluate the defendant’s term of reimprisonment, not for
plain error, but under the “plainly unreasonable” standard found in 18 U.S.C. § 3742(e)(4).
That ambiguity aside, Harvey was decided before United States v. Booker, 543 U.S. 220 (2005).
And we have since held, in the context of initial sentencing, that no further objection is
necessary after a district judge has pronounced a term of confinement or supervision because
insisting upon an objection “to preserve appellate review for reasonableness would create a
trap for unwary defendants and saddle busy district courts with the burden of sitting through
an objection—probably formulaic—in every criminal case.” United States v. Castro-Juarez, 425
F.3d 430, 433-34 (7th Cir. 2005). Recently we have also noted that cases such as Harvey did not
No. 08-3168 Page 3
differentiate between “objections” and “exceptions,” which is a complaint after a judicial
choice has been made. United States v. Bartlett, Nos. 08-1196, 08-1197, 08-1198, 2009 WL
1577688, at *8 (7th Cir. June 8, 2009) (“[T]he rules do not require a litigant to complain about
a judicial choice after it has been made.”). Thus, whether or not the defendant complained, we
will review a prison term imposed upon revocation for reasonableness, and will uphold that
term unless it is “plainly unreasonable.” See United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.
2007).
Sullivan’s 46-month term of reimprisonment does not exceed the maximum term allowed
by law. Defense counsel acknowledges that the district court could have given Sullivan to
up to 60 months because the conspiracy that resulted in the term of supervised release was a
Class A felony, see 18 U.S.C. §§ 3583(e)(3), 3559(a)(1); 21 U.S.C. § 841(b)(1)(A)(viii). The court
was also free to impose—as it did—a new term of supervised release to follow the term of
reimprisonment, and given that Sullivan’s underlying conviction was for a drug conspiracy
under § 846, the court could have imposed a lifetime term of supervised release after
revocation. See 18 U.S.C. § 3583(h); United States v. Jackson, 559 F.3d 368, 371 (5th Cir. 2009);
United States v. VanHoose, 437 F.3d 497, 502 (6th Cir. 2006). Sullivan apparently thinks that the
post-revocation terms of imprisonment and supervised release were limited by the length of
his original term of supervised release and by the amount of time he served on his original
sentence, but he simply fails to acknowledge § 3583(h), which governs his case.
Sullivan’s term of reimprisonment is also consistent with Application Note 4 to
U.S.S.G. § 7B1.4. At all relevant times, Application Note 4 has given district courts the
discretion to impose a term of reimprisonment above the advisory range where the defendant's
original sentence was “the result of a downward departure (e.g., as a reward for substantial
assistance).” U.S.S.G. § 7B1.4, cmt. n. 4; see also United States v. Verkhoglyad, 516 F.3d 122, 129-30
(2d Cir. 2008); United States v. Bungar, 478 F.3d 540, 546 (3d Cir. 2007). Sullivan’s contention
that the district court was required to give him notice before imposing his term of
reimprisonment is premised on a misunderstanding of the advisory nature of the Chapter
Seven policy statements. We have held that a district court does not need to give prior notice
before imposing a term beyond the advisory range. See United States v. McClanahan, 136 F.3d
1146, 1152 (7th Cir. 1998). Sullivan analogizes the addition of his Rule 35 sentence reduction
to his term of reimprisonment as a “departure,” which in years past required notice. But, as
the government points out, the concept of “departures” has been made obsolete by United
States v. Booker, 543 U.S. 220 (2005), and thus, even at initial sentencing, district courts no longer
need to give notice that a prison term will exceed the guidelines range. See United States v.
Walker, 447 F.3d 999, 1006 (7th Cir. 2006).
No. 08-3168 Page 4
Also meritless is Sullivan’s argument that the district court was obligated to give him
a lengthier explanation to justify a 46-month term of reimprisonment. In selecting an
appropriate prison term to follow revocation, the district court must consider the Chapter
Seven policy statements as well as the factors set out in 18 U.S.C. § 3553(a). See United States
v. Neal, 512 F.3d 427, 438 (7th Cir. 2008). Here the district court satisfied its obligation under
the policy statements and § 3553(a). The court considered the applicable advisory range under
U.S.S.G. § 7B1.4, the nature of Sullivan’s supervised-release violations, his substance abuse,
and his history and characteristics, see United States v. Jackson, 549 F.3d 1115, 1117 (7th Cir.
2008); United States v. Pitre, 504 F.3d 657, 654-55 (7th Cir. 2007); United States v. George, 403 F.3d
470, 473 (7th Cir. 2005.
Sullivan compares his term of reimprisonment to those received by his codefendant in the
underlying offense and five other defendants in unrelated cases. But nothing is more common
than for different defendants to receive different terms of imprisonment, see United States v.
Gammicchia, 498 F.3d 467, 469 (7th Cir. 2007), so ticking off what others got is of no value to
Sullivan.
Finally, Sullivan takes issue with the government’s attempt to introduce police reports
indicating that he had been purchasing drugs shortly before the revocation hearing. He
maintains that these reports led the district court to impose an excessive term of
reimprisonment. At the revocation hearing, the government acknowledged that the drug buys
recounted in these reports were not alleged in the petition to revoke, but the prosecutor
asserted that the reports still would be helpful to the district court in deciding on a term of
reimprisonment. Defense counsel objected to the reports, however, and the district court ruled
that it was “not going to consider what hasn’t been charged.” Given that explicit ruling, there
is no support for Sullivan’s contention that the attempted introduction of the police reports
affected the court’s choice of term of reimprisonment. Thus, neither this argument nor any of
Sullivan’s other arguments demonstrate that his term of reimprisonment is “plainly
unreasonable.”
Accordingly, we AFFIRM the judgment of the district court.