United States v. Shaon Arch

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1354
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY J. PHILLIPS
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 03-cr-40-bbc-1 — Barbara B. Crabb, Judge.
____________________
No. 14-3096
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SHAON ARCH,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 10-cr-175-bbc-1 — Barbara B. Crabb, Judge.
2 Nos. 14-1354 & 14-3096
____________________
ARGUED JANUARY 27, 2015 — DECIDED JUNE 26, 2015
____________________
Before POSNER, SYKES, and HAMILTON, Circuit Judges.
SYKES, Circuit Judge. Gregory Phillips and Shaon Arch
violated the conditions of their supervised release and were
returned to court for revocation proceedings. The district
judge sent them back to prison based in part on the need to
“hold [them] accountable for [their] actions.” Although their
cases are otherwise unrelated, they raise the same issue on
appeal, so we have consolidated them for decision. The
defendants argue that because “accountability” is not a
factor listed in the revocation statute, see 18 U.S.C. § 3583(e),
the judge committed reversible procedural error. We reject
this argument and affirm.
I. Background
In late 2012 Phillips was released from prison and began
a five-year period of supervision in the Western District of
Wisconsin. 1 He soon violated his release conditions in
multiple ways. He used marijuana; he attempted to dilute a
urine sample; and he left the judicial district without his
probation officer’s permission. The probation officer enrolled
him in sweat-patch testing to more closely monitor his drug
use. During the next several months, Phillips again traveled
1 He served 132 months for possessing cocaine base with intent to
distribute. See 21 U.S.C. § 841(a)(1).
Nos. 14-1354 & 14-3096 3
outside the district without permission. He also tested
positive for drug use three times (twice for cocaine and once
for opiates) and repeatedly failed to comply with
sweat-patch testing. Finally, he associated with a person
engaged in criminal activity. Based on these violations, in
late 2013 the district court issued a warrant for Phillips’s
arrest. He evaded apprehension for several months.
When Phillips was finally arrested, District Judge Barbara
Crabb held a revocation hearing, at which Phillips stipulated
to the charged violations. The guidelines recommended
reimprisonment for 12 to 18 months. See U.S.S.G. § 7B1.4(a).
Phillips argued for the bottom of the range, noting that he
was steadily employed during supervision and was actively
involved in his children’s lives. He also explained that he
had evaded arrest because he wanted to be with his wife for
the birth of their daughter.
Judge Crabb revoked Phillips’s supervision and returned
him to prison for 24 months, six months above the top of the
range. She acknowledged that he had “work[ed] hard” to
maintain employment while on supervision, but concluded
that he “thr[e]w it away,” along with an opportunity to be
with his wife and young children, by repeatedly violating
the conditions of his supervision. She also noted that Phillips
received a “break” when his original prison sentence was
substantially reduced based on subsequent changes to the
sentencing guidelines. See 18 U.S.C. § 3582(c)(2) (authorizing
the court to modify a sentence of imprisonment when the
original sentence was based on a guidelines range that is
subsequently lowered by the Sentencing Commission).
Summing up, the judge said the reimprisonment term was
4 Nos. 14-1354 & 14-3096
meant to “hold you accountable for your actions and protect
the community.”
In August 2014 Arch was released from prison and began
a three-year term of supervision, also in the Western District
of Wisconsin. 2 Like Phillips, he soon violated the terms of his
supervision. Because Arch did not have a place to live when
he was released from prison, his probation officer took him
to a homeless shelter and told him not to leave the facility.
Arch left the shelter that same day and was arrested a few
hours later. He was released with instructions to return to
the shelter. He did so but soon disappeared again and left
Wisconsin. He was arrested in Illinois after assaulting two of
his sisters. At the time of his arrest, Arch smelled strongly of
alcohol and possessed an open bottle of liquor.
For this conduct Arch was charged with several viola-
tions of supervised release: disobeying his probation officer’s
instructions, committing another crime, leaving the judicial
district without permission, and using alcohol. Judge Crabb
revoked Arch’s supervision and ordered him reimprisoned
for a within-guidelines term of 12 months. The judge em-
phasized that Arch had proven “impossible” to supervise
and posed a “great danger” to others based on the attack on
his sisters. She also noted that Arch had “very serious mental
health problems” and had “refused to comply with any
treatment.” Finally, as in Phillips’s case, the judge cited the
need to “hold [Arch] accountable for [his] actions and pro-
tect the community.”
2 He served 27 months for possessing a firearm as a felon. See 18 U.S.C.
§ 922(g)(1).
Nos. 14-1354 & 14-3096 5
II. Discussion
The defendants argue that Judge Crabb committed pro-
cedural error by relying on the need for “accountability,” a
factor not enumerated in § 3583(e), the statute that governs
revocation decisions. We disagree.
Section 3583(e) gives the sentencing judge several tools to
deal with offenders who violate the terms of their super-
vised release. As relevant here, the statute permits the court
to revoke supervision and order the violator reimprisoned
after considering a subset of the factors set forth in § 3553(a),
the general sentencing statute. 3 The need to hold the defend-
ant accountable is not listed.
But accountability is an obvious concern whenever an
offender has violated the conditions of supervised release—
so obvious that it may not tell us much about the judge’s
rationale for the revocation decision. Even so, there’s noth-
ing improper about considering it. To the contrary, an
offender who violates the conditions of supervised release
commits a “breach of trust,” and revocation is primarily
aimed at sanctioning that breach. U.S.S.G. ch. 7, pt. A, intro-
ductory cmt. 3(b) (emphasizing the “breach of trust” ra-
3 Specifically, the statute provides that
[t]he court may, after considering the factors set forth in
section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(5), (a)(6), and (a)(7) … revoke a term of supervised
release, and require the defendant to serve in prison all
or part of the term of supervised release, … if the
court … finds by a preponderance of the evidence that
the defendant violated a condition of supervised release.
18 U.S.C. § 3583(e)(3).
6 Nos. 14-1354 & 14-3096
tionale for revocation policy); see United States v. Clay,
752 F.3d 1106, 1109 (7th Cir. 2014) (explaining that a judge’s
remarks about “just punishment” properly “describe a
sanction that conveys the importance of obeying conditions
of supervised release” (internal quotation marks omitted));
United States v. Johnson, 640 F.3d 195, 203 (6th Cir. 2011);
United States v. Young, 634 F.3d 233, 241 (3d Cir. 2011);
United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006).
To the extent the defendants are arguing that the list of
factors in § 3583(e) is exclusive, they are mistaken. In United
States v. Clay, we held that a district court may consider the
factors listed in subsection (a)(2)(A) of § 3553—the serious-
ness of the offense, respect for the law, and just punish-
ment—even though those factors are not mentioned in
§ 3583(e), as long as the court “relies primarily on the factors
listed in § 3583(e).” 752 F.3d at 1108–09; see Young, 634 F.3d at
240–41 n.3. Broadly speaking, the § 3583(e) factors include
the nature of the offense, the defendant’s history and charac-
teristics, the need for deterrence and public protection, the
defendant’s educational and treatment needs, and the
guidelines and policy statements of the Sentencing Commis-
sion. See § 3583(e) (cross-referencing § 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)).
The judge considered these factors here, albeit in sum-
mary fashion. In both cases the judge began by correctly
calculating and considering the reimprisonment range
recommended by the guidelines. Opting for a longer term in
Phillips’s case, the judge specifically relied on the need to
protect the public as well as Phillips’s poor compliance
history on supervision and the fact that his original prison
sentence had been substantially reduced, which the judge
Nos. 14-1354 & 14-3096 7
characterized as a “break” that enabled him to be reunited
with his family sooner than expected. She also acknowl-
edged his “hard work” in holding a job after being released,
but emphasized that he “thr[e]w it away” by repeatedly
violating the conditions of his supervision. The judge’s
reliance on accountability as an added justification for the
24-month term fits comfortably under the general heading of
“deterrence” and was not improper.
As for Arch, the judge settled on a within-guidelines term
of reimprisonment of 12 months. She specifically empha-
sized the need to protect the public (recall that Arch attacked
his sisters after absconding from supervision). She also
noted Arch’s unwillingness to abide by his probation
officer’s directions, his “very serious mental health prob-
lems,” and his “refus[al] to comply with any treatment.”
Here again, adding accountability to the mix was not im-
proper.
Finally, Phillips maintains that the judge did not ade-
quately explain her choice of a 24-month term of reimpris-
onment, six months above the top of the advisory range.
When imposing an above-guidelines prison term, a sentenc-
ing court need not explain why a within-range sentence
would be insufficient, see United States v. Brown, 732 F.3d 781,
788 (7th Cir. 2013); United States v. Courtland, 642 F.3d 545,
550 (7th Cir. 2011); United States v. Bartlett, 567 F.3d 901, 909
(7th Cir. 2009), but the judge must justify the sentence in
light of the statutory sentencing factors and any relevant
policy statements in the guidelines, see United States v.
Robertson, 648 F.3d 858, 859–60 (7th Cir. 2011).
The judge’s comments here were sparse, but they were
sufficient. As we’ve already explained, the judge correctly
8 Nos. 14-1354 & 14-3096
noted the reimprisonment range recommended by the
guidelines (12 to 18 months) as well as the relevant statutory
factors, including Phillips’s history and characteristics, the
need to protect the public, and (broadly speaking) the need
for deterrence. And because the judge chose an imprison-
ment term fairly close to the top of the suggested range and
three years below the statutory maximum, extensive expla-
nation was not required. See Gall v. United States, 552 U.S. 38,
50 (2007); United States v. Jones, 774 F.3d 399, 405 (7th Cir.
2014).
AFFIRMED.
Nos. 14-1354 & 14-3096 9
POSNER, Circuit Judge, concurring and dissenting. I agree
with the majority’s decision in Arch’s appeal, but I would
reverse Phillips’s sentence, and will limit my discussion ac-
cordingly. The errors in the majority opinion that I will be
discussing with reference only to Phillips spill over into its
analysis of Arch, but in the case of Arch they are harmless; in
the case of Phillips they are not.
Phillips’s case is another illustration of the difficulty, dis-
cussed in several of our recent cases, see United States v.
Kappes, 782 F.3d 828 (7th Cir. 2015); United States v. McMilli-
an, 777 F.3d 444 (7th Cir. 2015); United States v. Thompson, 777
F.3d 368 (7th Cir. 2015); United States v. Bryant, 754 F.3d 443
(7th Cir. 2014); United States v. Siegel, 753 F.3d 705 (7th Cir.
2014)—none cited in the majority opinion in this case—that a
number of federal district judges in this circuit are having
with supervised release. The district court’s handling of the
case was inconsistent with these opinions, and so is the af-
firmance of Phillips’s sentence.
Phillips was convicted in 2003 of conspiracy to distribute
cocaine and ultimately sentenced to 132 months in prison.
(That was a resentence—his original sentence had been a
staggering 262 months.) He served a total of 118 months of
his 132-month sentence. Soon after being released in 2012, he
began violating several conditions of supervised release that
the sentencing judge had imposed—using marijuana, at-
tempting to dilute a urine sample in order to conceal his use
of illegal drugs from his probation officer, and leaving the
judicial district without the officer’s permission. Out of con-
cern for the defendant’s continued use of illegal drugs, the
probation officer ordered him to wear a “sweat patch.” An
alternative to urine testing for illegal drug use, a sweat patch
10 Nos. 14-1354 & 14-3096
is a small absorbent pad attached to one’s arm or back or
elsewhere on the body by an adhesive strip. It absorbs small
quantities of sweat, which if the person wearing the patch is
consuming cocaine or heroin will contain molecules that re-
veal the drug’s presence in the person’s body. The patch is
removed every week and sent to a laboratory to test for the
presence of such molecules.
After being “patched,” the defendant within a period of
months twice tested positive for illegal drugs, removed the
patches other than for the weekly testing (he claimed with-
out contradiction that they irritated his skin), again traveled
outside the judicial district without permission, and associ-
ated with a person engaged in criminal activity. Eventual-
ly—roughly a year after the defendant’s release from pris-
on—the district court issued a warrant for his arrest for vio-
lation of supervised release, and he was arrested after elud-
ing arrest for several more months. Despite his violations he
had maintained steady, gainful employment during his su-
pervised release, had maintained a normal family life, and
claimed that he had evaded arrest just so that he could be
with his wife for the birth of their daughter. These claims
were not controverted.
The judge ordered that his supervised release be revoked
(which was mandatory, though only because one of his vio-
lations of supervised release was possession of a controlled
substance, 18 U.S.C. § 3583(g)(1)), and that he be imprisoned
as punishment for his violations. The guidelines range appli-
cable to his violations was 12 to 18 months, but the judge
sentenced him to 24 months (to be followed by 36 months of
the same conditions of supervised release that he had been
Nos. 14-1354 & 14-3096 11
originally sentenced to), even though the government had
recommended a within-guidelines sentence.
The prison sentence imposed by the district judge was
unduly severe (the reimposition of the conditions of super-
vised release for 36 months is not challenged). So far as ap-
pears, despite his drug addiction, unauthorized trips outside
the judicial district, and associating with a criminal, he led a
normal life, with a wife and children and steady, gainful,
lawful employment. He had life insurance, health insurance,
and even dental insurance. He had been able to afford to buy
his kids fishing poles and take them fishing. To stick him in
prison for two years is bound to endanger both the stability
of his family life and his ability to maintain lawful employ-
ment. His violations of supervised release were minor from
the standpoint of protecting the community. Many drug ad-
dicts live quite normal lives; he seems to be one of them.
There was nothing sinister about his unauthorized trips out-
side the Western District of Wisconsin—they were to Minne-
sota, where his mother lives—or his association with a crim-
inal, a woman whom he drove to Minnesota, where she ap-
plied for government assistance without being entitled to it.
The defendant claimed not to know that the woman was en-
gaged in welfare fraud, and the government does not con-
tend that he did know. To associate with a person who is a
criminal but whom one does not know to be a criminal can
hardly be thought a violation of supervised release. See
United States v. Thompson, supra, 777 F.3d at 377, 380; United
States v. Phillips, 704 F.3d 754, 767–68 (9th Cir. 2012). And
apparently the sweat patches that the defendant removed
from his skin really were very irritating, for they left lesions
on his back.
12 Nos. 14-1354 & 14-3096
The most serious error committed by the district judge—
a reversible error overlooked in the majority opinion—is the
judge’s failure to apply the statutory sentencing factors in 18
U.S.C. § 3553(a), specifically those in subsection (2) (“the
need for the sentence imposed”). Our recent cases empha-
size that application of the factors is a requirement in deter-
mining what conditions of supervised release to impose, not
an option. See United States v. Kappes, supra, 782 F.3d at 845;
United States v. Bryant, supra, 754 F.3d at 444–45; United States
v. Siegel, supra, 753 F.3d at 707. The Justice Department now
acknowledges this by requesting remands in appeals in
which the requirement is overlooked. See, e.g., United States
v. Miller, 782 F.3d 793, 803 (7th Cir. 2015). (None of these cas-
es is cited in the majority opinion in the present case.) Ignor-
ing the requirement is a reversible error. Application of the
sentencing factors is likewise required in deciding on the
punishment for violating a condition of supervised release,
United States v. Boultinghouse, 784 F.3d 1163, 1177–79 (7th Cir.
2015)—for the punishment, just like the imposition of condi-
tions of supervised release, is a sentence, and unless a sen-
tence is specified by Congress, the sentencing judge must
before imposing it consider its conformity to the section
3553(a) factors. That was not done in this case, and the ma-
jority opinion allows the error, though it is a reversible error,
to pass.
After hearing from the lawyers and the defendant, the
district judge addressed the defendant as follows: “You did
work hard. The fact that you could work that long at the fast
food place and then get a job at Ashley Furniture, I mean
you really had things going for you. You were set. I mean
there are all kinds of people I know that haven’t had that
kind of success after getting out of prison. And then to throw
Nos. 14-1354 & 14-3096 13
it away. … I’m going to impose a sentence slightly—well,
quite a bit above the guidelines range. The intent of this sen-
tence it [she must have meant ‘is’] to hold you accountable
for your actions and protect the community.” And that’s it,
so far as compliance with the requirement that a sentencing
judge justify the sentence imposed. To repeat, the judge did
not cite 18 U.S.C. § 3553(a) or mention the sentencing factors
listed in it, unless “protect the community” can be consid-
ered one. Cf. § 3553(a)(2)(C). Yet the defendant does not ap-
pear to be a threat to the community. And the judge gave no
reason at all for imposing an above-guidelines sentence,
which as I noted the government had not requested.
The judge’s reference to “accountability” is difficult to
understand. A defendant cannot be convicted, let alone sen-
tenced, for conduct for which he is not accountable. That is a
precondition of punishment rather than a prescription for
severity.
I am distressed, finally, by the district judge’s appearing
to base the harsh sentence on the fact that the defendant “re-
ally had things going for” him, unlike so many ex-cons. The
implication is that he is being punished extra-severely for
being able to do, and doing, what so many former convicts,
especially those who like him have served long prison sen-
tences, are unable to do after being released—maintain an
intact family and obtain decent employment (which of
course go hand in hand). The sentence jeopardizes both of
the defendant’s achievements. As a result of spending two
more years in prison, he is likely to lose his job and opportu-
nities for future gainful employment; he may lose his family.
14 Nos. 14-1354 & 14-3096
The judge failed to articulate a rational basis for impos-
ing an above-guidelines sentence. The sentence she imposed
should be reversed.