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United States v. Jones

United States Court of Appeals, Seventh Circuit

June 30, 2017

United States of America, Plaintiff-Appellee,
v.
Keefer Jones, Defendant-Appellant.

          Argued November 29, 2016

         Appeal from the United States District Court for the Central District of Illinois. No. 2:02-cr-20029-HAB-EIL-l - Harold A. Baker, Judge.

          Before Bauer, Flaum, and Hamilton, Circuit Judges.

          Bauer, Circuit Judge.

         In July 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).

         On 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.

         On 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.

         On 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 resentencing.

         A. Ineffective Assistance of Counsel Claim

         First, 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.").

         The 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).

         However, 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.

         For two 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.

         Third, 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.[1] 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 ...


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