July 10, 2019
from the United States District Court for the Central
District of Illinois. No. l:04-cr-10073-001 - SaraDarrow,
Easterbrook, Barrett, and Brennan, Circuit Judges.
Nelson appeals the revocation of his supervised release and
ensuing 60-month prison sentence. At his revocation
proceeding, he waived his right to a contested hearing and
stipulated that the government would be able to provide
evidence to show that he violated his terms of release.
Nelson now argues that his waiver was not knowing and
voluntary. Because the totality of the circumstances
demonstrates otherwise, we affirm the district court's
2006, Nelson pleaded guilty to one count of possessing more
than 50 grams of cocaine with the intent to distribute,
see 21 U.S.C. § 841(a)(1), (b)(1)(A), and was
sentenced to 16 years' imprisonment and 10 years'
supervised release. After being released from prison in 2014,
Nelson-then serving supervised release-was arrested and
charged with possession of a controlled substance with intent
to deliver. Based on Nelson's stipulation to violating
his conditions of release, the district court (Judge Mihm)
revoked Nelson's supervised release and sentenced him to
30 months' imprisonment and 18 months' additional
began his second term of supervised release in 2017. In
November that year, Nelson's parole officer petitioned to
revoke his supervised release based on allegations that he
had committed two counts of aggravated battery, one count of
possession of cannabis with intent to deliver, and one count
of possession of cannabis.
was brought to the district court (before Magistrate Judge
Shields) for an initial hearing on the petition to revoke.
The judge asked defense counsel whether he had the chance to
discuss the revocation petition with Nelson, and counsel
confirmed that he had. The judge then asked Nelson if he
understood "what the government [sought] to have occur
if this petition would be granted," to which Nelson said
yes. The judge scheduled the final revocation hearing for two
final hearing, the parties informed the court (this time,
Judge Darrow) that the government had agreed to recommend a
lower sentence (41 months' imprisonment- 10 months below
the recommended guideline range[†]") in
exchange for Nelson's stipulation that he violated his
terms of release and waiver of his right to a contested
revocation hearing. Judge Darrow informed Nelson that, if he
wished to proceed and so stipulate, his stipulation could not
be conditioned on the court's acceptance of the proposed
sentence. Nelson responded "I ain't got no say no
way. Just go on and agree to it." The judge expressed
concern about the voluntariness of his stipulation. She
directed Nelson to confer with his lawyer, who, after an
exchange with Nelson, assured the court that Nelson
understood "all the principles" and did not
"want to fight it anymore." The judge asked Nelson
if he agreed with his attorney's statement, and Nelson
answered that he did.
under oath, then stipulated that the government would be able
to provide enough evidence for the court to find by a
preponderance of the evidence that he had violated conditions
of his supervised release. The judge then questioned Nelson
about the voluntariness of his stipulation and said that she
sensed reluctance. Nelson responded that he was frustrated
with the situation because he had "no say in nothing
that happened." Nelson added, however, that he was
"okay with stipulating" and did not need a full
hearing because he had violated the conditions of his
supervised release "just by being arrested." The
judge proceeded to accept the stipulation.
government and defense counsel then argued in support of
their jointly proposed 41-month prison term. The government
defended the need for a downward departure because
Nelson's stipulation avoided the expense and time of
conducting a contested evidentiary hearing and, besides,
there were "some Fourth and Fifth Amendment issues with
proving up the violations beyond a reasonable doubt."
The government added that there was less of a need for
specific deterrence because Nelson would likely be prosecuted
and receive a sentence in state court for the underlying
violations. Defense counsel seconded the need for a lesser
penalty, given that Nelson was being punished not because he
had been found guilty beyond a reasonable doubt of committing
state law violations, but because he had violated his terms
of supervised release by a preponderance of the evidence.
was then invited to allocute. He began by stating that he
"was under the impression from reading the statute ...
that just being arrested [was] a violation of [his]
term." The district court interrupted him: "Well,
just being arrested isn't enough, but [it would be
enough] if you're agreeing that the government would call
the witnesses ... to testify and that they would testify to
the facts that they outlined. So it's not just being
arrested." When asked if he understood that, Nelson
court ultimately rejected the parties' joint
recommendation and sentenced Nelson to 60 months'
imprisonment, the statutory maximum. The court did not agree
that a downward departure was warranted, explaining that it
was unper-suaded that avoiding the expense of a contested
hearing justified a reduced sentence. The court then
dismissed as speculative the government's suggestion that
Nelson would be separately convicted in state court, and so
it refused to adjust the sentence based on that argument.
Finally, the court was ...