United States v. Jason Price

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-2061
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON A. PRICE, also known as JAZZ PRICE
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:11-cr-00122-wmc-1 — William M. Conley, Judge.
____________________
SUBMITTED FEBRUARY 7, 2023 — DECIDED OCTOBER 23, 2023
____________________
Before HAMILTON, BRENNAN, and JACKSON-AKIWUMI,
Circuit Judges.
JACKSON-AKIWUMI, Circuit Judge. One in five transgender
women report being incarcerated. 1 And nearly 40% of incar-
cerated transgender women report being sexually assaulted
1 See Jaime M. Grant et al., Injustice at Every Turn: A Report of the Na-
tional Transgender Discrimination Survey, at 163 (2011), https://www.the-
taskforce.org/wp-content/uploads/2019/07/ntds_full.pdf.
2 No. 22-2061
while incarcerated, compared to 4% of all incarcerated peo-
ple. 2 These statistics only scratch the surface of petitioner Jazz
Price’s lived experiences as a transgender woman in federal
detention. That is why, at her supervised release revocation
hearing, Price asked the district court to consider the height-
ened risk of sexual assault she would face in prison. The dis-
trict court acknowledged the risk of harm to Price, imposed a
prison sentence slightly below the statutory maximum, and
recommended that the Bureau of Prisons consider Price’s
safety and gender transition when selecting her incarceration
facility.
On appeal, Price argues that the district court committed
procedural error because it failed to account for her unique
vulnerability. Because the sentencing transcript demonstrates
that the district court considered Price’s concerns, we affirm.
I
In 2011, Price pleaded guilty to being a felon in possession
of a firearm in Wisconsin. The district court sentenced her un-
der the Armed Career Criminal Act (ACCA) to 15 years’ im-
prisonment, followed by three years’ supervised release. The
BOP designated Price to serve her sentence in federal
2 See Allen J. Beck, U.S. Dept. of Justice, Bureau of Justice Statistics,
Sexual Victimization in Prisons and Jails Reported by Inmates, 2011-12, at 8
(May 2013) http://www.bjs.gov/content/pub/pdf/svpjri1112.pdf; Beck,
Supplemental Tables: Prevalence of Sexual Victimization Among Transgender
Adult Inmates, Table 1 (Dec. 2014) http://www.bjs.gov/con-
tent/pub/pdf/svpjri1112_st.pdf.
No. 22-2061 3
penitentiaries—the highest level security facilities second
only to the maximum-security ADMAX in Florence, Colo-
rado. 3
The penitentiaries proved to be dangerous for Price—first
as a gay man (before transitioning) and later as a transgender
woman. Within two months of incarceration, the BOP placed
Price into a special housing unit (the “SHU”) for protective
custody. 4 But that failed to keep Price safe; prison officials
found her in the SHU with lacerations and bruises on her face
and throat. In 2014, Price was hospitalized multiple times due
to violence she suffered from other inmates. For nearly a dec-
ade, Price was transferred from penitentiary to penitentiary,
each time based on a finding that she needed to be transferred
to a facility that could meet her security and programming
needs. At each facility, she spent most of her time in the
SHU—sometimes for protection, but often for discipline. The
disciplinary issues frequently stemmed from her belief that
she had to fight and “be tough” to protect herself in prison.
3 BOP facilities fall into four categories: minimum security Federal
Prison Camps, low security Federal Correctional Institutions, medium se-
curity Federal Correctional Institutions, and high security United States
Penitentiaries. Florence ADMAX is an administrative maximum security
penitentiary. See U.S. Dept. of Justice, Fed. Bureau of Prisons, About the
Federal Bureau of Prisons, at 2 (June 2015) https://www.bop.gov/re-
sources/pdfs/ipaabout.pdf; U.S. Dept. of Justice, Fed. Bureau of Prisons,
About Our Facilities, https://www.bop.gov/about/facilities/federal_pris-
ons.jsp (last visited Sept. 27, 2023).
4 BOP facilities have special housing units for temporary disciplinary
or administrative segregation and protective custody. Inmates placed in
the SHU have restricted access to others. U.S. Dept. of Justice, Fed. Bureau
of Prisons, Program Statement: Special Housing Units, at 1–4 (Nov. 2016)
(https://www.bop.gov/policy/progstat/5270.11.pdf.
4 No. 22-2061
In 2017, Price filed a pro se motion to vacate her sentence
and a habeas petition under 28 U.S.C. § 2255 seeking the same
relief. Following a retroactive change in the law, 5 the district
court granted Price’s request and resentenced her without the
ACCA enhancement. The court reduced her sentence to “time
served,” followed by three years of supervised release.
After Price’s release from prison, she worked full-time at
a factory and obtained substance abuse therapy. But she also
violated multiple terms of her supervised release: she lost her
placement at a halfway house because of rule infractions,
started using drugs, missed drug tests, and eventually fled
from Wisconsin in August 2020 after stabbing a man in what
she says was self-defense. 6 A warrant was issued for Price’s
arrest, and in March 2022, the U.S. Marshals found and ar-
rested Price in Iowa. She explained that she spent the 19
months between her fleeing and her arrest working odd jobs
in exchange for food and shelter in Minnesota, Texas, and
Iowa.
At her revocation hearing in May 2022, Price conceded
that the district court had a sufficient basis to return her to
prison but asked the court not to do so. Price’s principal argu-
ment was that, considering her well-documented personal
5 See United States v. Franklin, 387 Wis. 2d 259, 928 N.W.2d 545 (Wis.
2019) (answering a question certified by our court about burglary under
Wisconsin law), United States v. Franklin, 895 F.3d 954 (7th Cir. 2018) (cer-
tifying the question), and 772 F. App’x. 366 (7th Cir. 2019) (final disposi-
tion holding that Wisconsin burglary convictions do not qualify as prior
convictions for “violent felonies” under the Armed Career Criminal Act).
6 Wisconsin brought a criminal action against Price for the stabbing
but dismissed all charges in 2022 without prejudice. See State v. Jason A.
Price, No. 20-CF-240 (Wis. Cir. Ct. 2022).
No. 22-2061 5
history of suffering abuse in prison and the high rates of
transgender prisoner sexual assault, remand would mean
only one thing for Price—certain harm in prison. She asked
the court to consider this profound risk when deciding the ap-
propriate next step in her case. The court recognized the risk
to Price but decided that a custodial sentence was necessary
because of Price’s violations of her supervised release terms.
The court sentenced Price to 18 months of imprisonment
(slightly below the statutory maximum of 24 months and the
advisory guidelines range of 21 to 24 months), and 18 months
of supervised release.
II
On appeal, Price argues that the district court committed
procedural error because it failed to consider the inevitable
harm she would face as a transgender woman in prison. As
Price frames the error: “[R]ather than factoring in Price’s un-
usual susceptibility to abuse in the actual sentence, the district
court simply recommended that Price be placed at a medical
facility.” That recommendation, as Price sees it, means the
sentence imposed rests on mere speculation since judges have
no authority over BOP designation.
Framing aside, Price’s procedural challenge is one we fre-
quently address: whether the district court considered a de-
fendant’s principal arguments. See, e.g., United States v. Yan-
key, 56 F.4th 554, 557–59 (7th Cir. 2023). “We have long held
that district courts are required to directly address a defend-
ant’s principal arguments in mitigation that have legal merit.”
United States v. Williams, 887 F.3d 326, 328 (7th Cir. 2018) (cit-
ing United States v. Donelli, 747 F.3d 936, 937 (7th Cir. 2014),
and United States v. Cunningham, 429 F.3d 673 (7th Cir. 2005)).
6 No. 22-2061
At a revocation hearing, which is less formal than a sentenc-
ing hearing, “a defendant is entitled to present mitigation ar-
guments, … and district courts must approach revocation
hearings with an open mind and consider the evidence and
arguments presented before imposing punishment.” United
States v. Dawson, 980 F.3d 1156, 1165 (7th Cir. 2020) (cleaned).
Price’s mitigation argument that she would be subject to
great harm in prison and therefore warranted a non-custodial
sentence had legal merit. See Koon v. United States, 518 U.S. 81,
106–09, 111–12 (1996) (recognizing “susceptibility to abuse in
prison” as a permissible consideration for a sentencing court).
Indeed, we have previously recognized that a sentencing
court can make an “individualized determination” about a
defendant’s “vulnerability to abuse in prison.” United States v.
Wilke, 156 F.3d 749, 753–54 (7th Cir. 1998) (holding that on re-
mand, “the district court may consider [the defendant’s] sex-
ual orientation and demeanor”).
After reviewing the record, we are satisfied that the dis-
trict court considered Price’s principal mitigation argument.
The court addressed it from the outset:
I’m not discounting that your client presents a
number of challenging issues for any institution
that would hold her … I am willing to make as
strong a reference as I can to the Transgender
Executive Council[ 7] within the Bureau of
7 The Transgender Executive Council (TEC) is the BOP’s official deci-
sion-making body on all issues affecting the transgender prison popula-
tion. When BOP receives information that an individual entering BOP cus-
tody is transgender or intersex, the matter is referred to the TEC for re-
view. The TEC then considers a multitude of factors in assigning a facility.
These factors include, but are not limited to, the entering inmate’s (1)
No. 22-2061 7
Prisons to try to find an appropriate designa-
tion. I’m happy to hear from your client as to
where she stands in her efforts at transition. I’m
not discounting the challenges that she faces
both inside prison and outside prison.
See Revocation Hr’g. Tr. at 7:19–25. The court then engaged
with Price’s counsel and acknowledged that it heard counsel’s
concerns for Price’s safety. The court explained that although
it “could easily justify a two-year sentence,” it was not in-
clined to do so for all the reasons counsel indicated. Id. at 9:3–
10:9. Finally, the court engaged in a colloquy with Price her-
self, and explained that although it could not guarantee a
placement in a medical facility where Price would be safe,
Price could not entirely avoid a custodial sentence on that ba-
sis given her supervised release violations.
Price argues that, to avoid procedural error, the district
court had to “consider the realities of what Ms. Price will suf-
fer upon being returned to prison” and then use its broad dis-
cretion in one of three ways by saying: (1) “I believe that you
will spend your whole time in solitary confinement and be
constantly harassed and victimized, and consistent with that
belief, I think 18 months is appropriate;” (2) “I would nor-
mally sentence this conduct for a person with your criminal
history to 24 months, but given the difficulties you’ll face in
security level, (2) criminal and behavioral/disciplinary history, (3) current
gender expression, (4) programming, medical, and mental health
needs/information, (5) vulnerability to sexual victimization, and (6) likeli-
hood of perpetrating abuse. See U.S. Dept. of Justice, Fed. Bureau of Pris-
ons, Transgender Offender Manual (Jan. 13, 2022),
https://www.bop.gov/policy/progstat/5200-08-cn-1.pdf.
8 No. 22-2061
custody, I am going to give you 18 months;” or (3) “I would
normally sentence this conduct to 18 months, but I am con-
vinced that given the threats to your safety that a combination
of a short prison sentence and community confinement is ap-
propriate.” According to Price, any one of these approaches
“is consistent with the sentencing court’s discretion and the
fact that ‘defendants subjected to repeated physical or sexual
assault are, in effect, punished more severely than others.’”
But the district court did acknowledge the realities of dan-
ger for Price in the BOP and did choose at least one, perhaps
two, of the very options Price posits above, namely options 1
and 2. When addressing Price’s counsel before imposing the
sentence, the district court said it did not intend to “throw the
book” at Price for the reasons counsel had just highlighted
about the unique harm she faced in prison, but the sentence
imposed did have to “reflect her conduct.” Id. at 10:1–9. When
the court imposed the sentence, it stated: “The intent of my
sentence is to hold the defendant accountable for her viola-
tions, to protect the community, and promote specific and
general deterrence, notwithstanding both her counsel and her
statements as to the potential negative consequences of holding her
accountable for her own conduct.” Id. at 24:5–10 (emphasis
added). The “notwithstanding” clause can only be under-
stood as a reference to Price’s principal mitigation argument.
In sum, the district court addressed Price’s particular vul-
nerability as a transgender woman in prison and exercised its
discretion in imposing a prison sentence. A different judge
might have elaborated more, or weighed the heightened risk
to Price differently and afforded greater relief. But the stand-
ard for remanding a district court’s discretionary
No. 22-2061 9
determination is not met where the court addresses the de-
fendant’s meritorious and principal arguments in mitigation.
AFFIRMED.