Argued October 3, 2014.
Appeal from the United States District Court for the Central District of Illinois. No. 4:08-cr-40067-1 -- Sara Darrow, Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Jason M. Bohm, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Urbana Division, Urbana, IL; Kirk Schuler, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Rock Island, IL.
For JESSE A. SMITH, Defendant - Appellant: Johanna M. Christiansen, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL.
Before POSNER, ROVNER, and TINDER, Circuit Judges.
Posner, Circuit Judge.
In 2009 the defendant was sentenced to 24 months in prison, to be followed by 3 years of supervised release, for being a felon in possession of a gun. After being released from prison in 2011, he violated the terms of his supervised release by failing to submit to random drug tests, to attend substance-abuse treatment sessions, and to report to his probation officer. The district judge sentenced the defendant to five months in prison for these violations, and to an additional 30 months of supervised release. In 2012 the probation officer, while noting that the defendant had generally done well on supervised release, reported that he had twice tested positive for marijuana. The officer suggested, and the judge ordered, modifications in the terms of supervised release. The modifications consisted of requiring the defendant to serve 45 days of home confinement with electronic monitoring. Later, after the defendant had missed several drug tests, the judge ordered him to enroll in a mental health treatment program because he'd told the probation officer that he didn't know why he was taking marijuana but was " weak in spirit, depressed, and suffering anxiety."
To summarize a confusing sequence of events: 1. Smith finishes his five months in prison for violating supervised release and starts his new supervised-release term of 30 months. 2. During the new period he tests positive for marijuana twice and admits to using marijuana regularly--for this he is punished with 45 days of home confinement. 3. He tests positive again right after the 45-day home confinement begins, then tests negative ten times in a row and mental health treatment is added to his conditions of supervised release.
That isn't the end of our story. The following year (2013), the probation officer advised the district judge that the defendant had committed five traffic offenses, all in one day. The judge revoked the defendant's supervised release but offered him a choice between a five-month sentence of imprisonment followed by two or more years of supervised release, or 14 months' imprisonment with no supervised release. He chose the first option, and the judge sentenced him to five months' imprisonment plus two years of supervised release.
He was released from prison in October 2013 and in April of this year his probation officer advised the district court that the defendant had again violated terms of his supervised release both by continuing to use marijuana and by violating rules of the halfway house where he lived for a time after completion of his prison sentence. Although the recommended custody range for these infractions of the terms of his supervised release was only 5 to 11 months, the government, at the behest of the probation service, asked for 15 months. Defense counsel suggested six months with continued supervision or eight months with no further supervision. He pointed out that the defendant was now 24 years old with three small children, and that employers for whom he had worked during the previous two years had been impressed by his work ethic and would be glad to hire him back after he was released from prison. The district judge (Sara Darrow, not the judge--Joe Billy McDade--who had dealt with the defendant previously), describing the case as a difficult one, added that the defendant had a bank account and
actually paid his bills. So he had in her words " great foundations and necessary foundations for you to start being a man." But, she added, " I can't ignore the fact that you were given an opportunity already after you had violated supervised release, and you were given help ... . And I can't go back. I can't take steps back. There hasn't been enough ... . If you hadn't violated, or if ... your conduct on this newest term, or most recent term of supervised release was otherwise exemplary, but for these two positive UAs [urinalysis tests for drugs], I might be willing to give you a little bit more benefit of the doubt ... . I cannot ignore the fact that you were given a huge break last time around by Judge McDade, and you let him and the Court down. I can't go back and give you less than the option than [ sic ] you had back then. I think that would denigrate the seriousness of these violations, and of the chance you were given. It would promote disrespect for the law, and it would not be an adequate deterrent from [sic] your future conduct." She sentenced him to 15 months in prison but no more supervised release.
The defendant argues that Judge Darrow did not exercise discretion in sentencing him, but rather was " constrained by a sentence suggested by a different district court judge at a previous revocation proceeding," and that " this predetermination of a sentence deprived [the defendant] of his right to Due Process[; ] and the ...