November 29, 2016
from the United States District Court for the Central
District of Illinois. No. 2:02-cr-20029-HAB-EIL-l - Harold A.
Bauer, Flaum, and Hamilton, Circuit Judges.
2002, Appellant Keefer Jones was convicted of possession of
crack cocaine with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B). In 2004, the
district court sentenced Jones to 262 months'
imprisonment and eight years' supervised release. The
district court imposed several conditions of supervised
released, including drug testing, mental health treatment,
and sex offender treatment. Jones appealed, but did not
challenge the conditions of supervised release. We affirmed.
See United States v. Jones, 455 F.3d 800, 803-04
(7th Cir. 2006).
November 25, 2014, Jones began serving his supervised
release, but over the following year, he did not comply with
several conditions of that release. In December 2015,
Jones' probation officer filed a petition to revoke his
term of supervised release. The probation officer alleged
that Jones violated four conditions. Specifically, that he:
(1) failed to participate in sex offender treatment; (2)
failed to comply with mental health treatment; (3) violated
the Illinois Sex Offender Registration Act (ISORA); and, (4)
possessed a controlled substance.
March 3, 2016, Jones admitted that he violated all four
conditions. With a Grade B violation and a criminal history
category of VI, Jones' recommended Guidelines range was
21 to 27 months' imprisonment. See U.S.S.G.
§§ 7B1.1 and 7B1.4. The government recommended a
sentence of 27 months' imprisonment, while defense
counsel recommended a sentence that did not involve
imprisonment so that Jones could keep his job. Without a
discernable explanation, the district court rejected both
recommendations. Relying instead on the probation
officer's recommendation, the district court sentenced
Jones to the statutory maximum of 60 months'
imprisonment. This appeal followed.
appeal, Jones raises two arguments: first, he contends that
he received ineffective assistance of counsel; second, he
argues that the district court committed several procedural
errors in adjudicating his sentence. For the following
reasons, we affirm the district court's revocation of
supervised release, and we vacate his sentence and remand for
Ineffective Assistance of Counsel Claim
Jones argues that his counsel was constitutionally
ineffective for advising him to admit to the four violations
of his conditions of supervised release. Specifically, Jones
contends that counsel should have challenged each violation
in various ways. As a preliminary matter, we must address
whether there is an underlying right to counsel in the
proceeding for which Jones challenges his counsel's
performance. See United States v. Yancey, 827 F.2d
83, 89 (7th Cir. 1987) ("There can be no challenge to
the adequacy of counsel unless there is an underlying right
to counsel in a particular proceeding.").
Sixth Amendment grants a defendant the right to the
assistance of counsel at all critical stages of a criminal
prosecution. Iowa v. Tovar, 541 U.S. 77,
80-81 (2004). But, a revocation proceeding is not considered
a criminal prosecution under the Sixth Amendment. United
States v. Boultinghouse, 784 F.3d 1163, 1171 (7th Cir.
2015). Therefore, a defendant "has no Sixth Amendment
right to counsel" in the context of a revocation
proceeding. United States v. Eskridge, 445 F.3d 930,
933 (7th Cir. 2006); see also Boultinghouse, 784
F.3d at 1171 ("[T]he Sixth Amendment does not apply in a
hearing convened to decide whether a defendant's
supervised release should be revoked.") (citing
United States v. Kelley, 446 F.3d 688, 690 (7th Cir.
2006)); see United States v. Lee, 795 F.3d 682, 685
(7th Cir. 2015) (explaining that "the full panoply of
rights that the Constitution guarantees to criminal
defendants does not extend" to revocation proceedings).
the Fifth Amendment's due process clause accords a
defendant certain basic procedural protections, including a
right to representation by counsel under certain
circumstances. Boultinghouse, 784 F.3d at 1171;
see also Gagnon v. Scarpelli, 411 U.S. 778, 786
(1973). This right presumptively attaches when a defendant
has a colorable claim that he has not violated the conditions
of release, or if he has "a substantial case to make
against revocation, notwithstanding any violation, that may
be difficult to develop or present."
Boultinghouse, 784 F.3d 1171. The issue now is
whether Jones has presented any claims to which the Fifth
Amendment due process right of counsel would attach.
of the violations, Jones challenges his counsel's failure
to move for modification to remove the conditions that
required sex offender and mental health treatment pursuant to
18 U.S.C. § 3583(e)(2). However, this is neither a claim
that he has not violated the conditions of release, nor a
case to make against revocation, notwithstanding the
violations. Instead, Jones puts forth a claim that is
contrary to our precedent. See United States v.
Neal, 810 F.3d 512, 518 (7th Cir. 2016) (noting that a
defendant properly utilizes § 3582(e)(2) to seek
modification or clarification of a condition without first
having to violate the condition (citing Fed. R. Crim. P.
32.1, Advisory Comm. Notes (1979))). Therefore, the Fifth
Amendment due process right to counsel would not attach for
these two claims.
Jones argues that his counsel should have challenged the
efficacy of his sweat patch that tested positive for cocaine
because the results may have been successfully
challenged. In other words, Jones is claiming that it
is possible that he may not have committed the violation. Not
only is Jones' claim speculative, but also, on top of
that, we generally consider sweat patch results to be a
reliable method of detecting the presence of drugs. See
United States v. Pierre,47 F.3d 241, 243 (7th Cir.
1995); see also United States v. Meyer, 483 F.3d
865, 869 (8th Cir. 2007). Jones acknowledges ...