United States v. Darren Hollis

NONPRECEDENTIAL DISPOSITION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 November 30, 2011*
Decided December 9, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
RICHARD D. CUDAHY, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 11-1931 Appeal from the United
States District Court for the
UNITED STATES OF AMERICA, Northern District of Illinois,
Plaintiff-Appellee, Eastern Division.
v.
No. 06 CR 677
DARREN A. HOLLIS, John W. Darrah, Judge.
Defendant-Appellant.
Order
Darren Hollis stole money from the Postal Service and pleaded guilty to violating 18
U.S.C. §1711. He was sentenced to a year and a day of imprisonment, a two‐year term
of supervised release, and ordered to pay $52,560 in restitution. The district court has
revoked Hollis’s supervised release because, since his release from prison, he has not
paid any of the restitution, though payment is one condition of his supervised release.
(Hollis put some money toward restitution before his sentence, perhaps hoping that this
would show acceptance of responsibility, and paid a little more through the Inmate Fi-
nancial Responsibility Program while in prison. Payments stopped cold on the date of
his release.) The court sentenced Hollis to 36 months of additional supervised release,
including 4 months’ community confinement.
* After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 11-1931 Page 2
The district court originally ordered Hollis to pay 10% of his income toward restitu-
tion. When Hollis disobeyed this order, the district court held a hearing in February
2010. Hollis asserted that his income (monthly unemployment benefits of $850) was in-
sufficient to make any payments. Two months later, at another hearing, the court or-
dered Hollis to perform some community service in lieu of restitution. In July, after an-
other hearing, the court concluded that Hollis could afford at least $80 a month and or-
dered him to pay that (and to continue with community service). When Hollis still did
not pay even one penny during the next nine months, the court revoked his supervised
release and imposed the extended term we have described. A month later, in an appar-
ent attempt to comply with 18 U.S.C. §3583(h), the court added one day’s imprisonment
to the revised sentence and stated that Hollis had already served this additional time.
Section 3583(h) provides (emphasis added):
When a term of supervised release is revoked and the defendant is required to
serve a term of imprisonment, the court may include a requirement that the de-
fendant be placed on a term of supervised release after imprisonment. The
length of such a term of supervised release shall not exceed the term of su-
pervised release authorized by statute for the offense that resulted in the orig-
inal term of supervised release, less any term of imprisonment that was im-
posed upon revocation of supervised release.
The district judge apparently was concerned that four months in community confine-
ment would not count as “imprisonment” under this statute, and that the absence of
any term of imprisonment would jeopardize the new 36-month term of supervised re-
lease. Hollis has not made any argument along these lines, however; he apparently ac-
cepts the validity of the addition (or perhaps deems community confinement the equiv-
alent of imprisonment). The United States is not and asks us to remand. The problem
with the district court’s approach, according to the prosecutor, is that under Fed. R.
Crim. P. 35(a) a district court has only 14 days to correct problems of this sort, and this
judge took longer.
Yet a remand would modify the judgment, which we lack authority to do. The Unit-
ed States did not file a cross-appeal, so we cannot alter the judgment at its behest. See
Greenlaw v. United States, 554 U.S. 237 (2008). There is an exception to the cross-appeal
requirement for situations in which the district court acted without subject-matter juris-
diction. But Eberhart v. United States, 546 U.S. 12 (2005), holds that time limits in the Fed-
eral Rules of Criminal procedure are not jurisdictional. See also United States v. Neff, 598
F.3d 320 (7th Cir. 2010) (time limit in Fed. R. App. P. 4(b) for taking a criminal appeal is
not jurisdictional). Because Hollis has not contested the district court’s delay in adding
the one-day term of imprisonment, and the United States cannot do so, we do not con-
sider this topic further and proceed to the arguments that Hollis does make.
No. 11-1931 Page 3
He principally argues that his failure to pay was not willful. Citing Bearden v. Geor-
gia, 461 U.S. 660, 671–72 (1983), he emphasizes that a defendant may not be punished
solely because he lacks the ability to pay. But the district judge found he is able to pay.
Hollis is in straitened circumstances, but even a person limited to $850 a month can pay
something, yet Hollis has not paid one cent. Hollis found the money to pay for the briefs
he filed in this court; he also could have found some money to pay restitution. The dis-
trict court observed that Hollis had not produced any evidence about his living expens-
es and therefore had not shown that it is impossible to pay any restitution. He states
that the district court did not give him an opportunity to produce this evidence, but he
is mistaken: There were multiple hearings, and the transcript of the final hearing reveals
that Hollis was given an opportunity to testify about “anything that [the court] should
consider in determining whether [he was] in violation of the terms of [his] supervision.”
He simply chose not to offer testimony or other evidence about his living expenses.
None of his other arguments requires lengthy consideration. For example, he com-
plains about a decision excluding as hearsay a letter from his wife asserting that the
couple was “living separately” in the same residence. The Federal Rules of Evidence do
not apply, Fed. R. Evid. 1101(d)(3), but the judge excluded the latter as unreliable. Hol-
lis’s problem in this court is that evidence about his living arrangements is material on-
ly to the extent it quantified his actual expenses; this letter did not.
Second example: Hollis contends that the district judge erred by modifying his resti-
tution obligation, at the hearing in July 2010, from 10% of gross income to $80 a month,
even though he did not attend. Criminal Rule 32.1, which governs hearings concerning
supervised release, does not allow a defendant to obtain a unilateral postponement by
the expedient of not showing up. It is enough if the defendant has an “opportunity to
appear”. Fed. R. Crim. P. 32.1(b)(2)(C). Hollis does not contend that he lacked that op-
portunity. Moreover, according to the transcript a lawyer appeared for him in July 2010.
Hollis says that the lawyer appeared without his consent, but we need not decide
whether this is so. The change from 10% to $80 a month was favorable to Hollis; if we
were to disregard the July 2010 order, Hollis’s obligation would go up. And the change
in July 2010 has nothing to do with the reason why supervised release was revoked—
Hollis’s obdurate refusal to pay anything toward restitution.
Hollis contends that his new 36‐month sentence of supervised release is unreasona-
bly long. A sentence imposed on the revocation of supervised release stands unless it is
“plainly unreasonable.” See United States v. Kizeart, 505 F.3d 672, 673 (7th Cir. 2007).
This sentence is not. It falls within the guidelines range, U.S.S.G. §7B1.4, and thus is pre-
sumptively reasonable. No more need be said about this subject, and the rest of Hollis’s
arguments require no discussion at all.
AFFIRMED