U.S. v. Robertson

• Decision Date: 15 August 2011
• Docket Number: No. 10–3543.,10–3543.
• Citation: 648 F.3d 858
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Charles W. ROBERTSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

648 F.3d 858

UNITED STATES of America, Plaintiff–Appellee,

v.Charles W. ROBERTSON, Defendant–Appellant.

No. 10–3543.

United States Court of Appeals, Seventh Circuit.

Submitted July 20, 2011.Decided Aug. 15, 2011.

James M. Cutchin (submitted), Amanda A. Robertson, Attorneys, Office of the United States Attorney, Benton, IL, for Plaintiff–Appellee.Daniel A. Orloski, Attorney, Law Office of Daniel Orloski, Carbondale, IL, for Defendant–Appellant.Before POSNER, KANNE, and HAMILTON, Circuit Judges.POSNER, Circuit Judge.

This appeal challenges the decision of the district judge, upon revoking the defendant's supervised release, to sentence him to a term of reimprisonment above the range recommended by the Sentencing Commission.

In 1993 the defendant was convicted of growing 228 marijuana plants and was sentenced to 120 months in prison and 8 years of supervised release. In September 2009, just days before his term of supervised release was scheduled to end, police arrested him while he was tending 52 large marijuana plants. The government filed a petition to revoke his supervised release. He admitted the petition's allegations and later pleaded guilty to a new charge of growing marijuana. The district judge sentenced him to 30 months in prison on the new charge and, consecutive to that term, 34 months as punishment for violation of the terms of supervised release, minus 4 months for time that he had served in a related state case; so the length of the sentence actually imposed was 60 months.

The defendant's only challenge on appeal is to the length of the term of reimprisonment. We consider whether the district judge failed to explain why this is anything other than a mine-run revocation case for which the term of reimprisonment recommended in the Sentencing Guidelines would be sufficient punishment. The recommended term is only 12 to 18 months, U.S.S.G. § 7B1.4, though the statutory maximum is three years. 18 U.S.C. § 3583(e)(3); see United States v. Flagg, 481 F.3d 946, 949 (7th Cir.2007); United States v. McKinney, 520 F.3d 425, 427 (5th Cir.2008).

The judge didn't give a reason for the 34–month term, and made just four, brief remarks that might supply clues to his thinking. The first is that he was “baffled” that the defendant would continue growing marijuana after spending eight years in prison for that crime. The second remark, which followed immediately and merely repeated the first in different words was: “why did you even consider doing this again?” The defendant replied that he had grown marijuana because “he just liked the way the plant looked” and he “liked to smoke it,” whereupon the judge asked him sarcastically whether he had “ever thought about growing gardenias or something legal versus growing marijuana” and added (this was his fourth remark) “you could have grown roses.” Without further explanation the judge stated: “with respect to the revocation, the Court is going to sentence you to 34 months.”

Appellate review of a sentence for violating the terms of supervised release is highly deferential—we have suggested that it might be comparable to “the narrowest judicial review of judgments we know,” namely judicial review of sanctions imposed by prison disciplinary boards. United States v. Kizeart, 505 F.3d 672, 675 (7th Cir.2007). We explained that “the Sentencing Commission's decision not to issue [formal] Guidelines implies that the sentencing court should have more than usual flexibility in sentencing for violations of conditions of supervised release; and the maximum sentence is only five years, and the shorter the sentence, and hence the less there is at stake, the fewer the layers of judicial review necessary to satisfy the requirements of due process of law.” Id. (citations omitted). The Guidelines do recommend, as we noted, a sentencing range for violations of supervised release, but these recommendations are made in what the Commission calls “policy statements,” which are merely “advisory” and hence “non-binding.” United States v. Carter, 408 F.3d 852, 854 (7th Cir.2005); United States v. Robertson, 537 F.3d 859, 861 (8th Cir.2008); United States v. Crudup, 461 F.3d 433, 439 (4th Cir.2006). True, under the regime of Booker, all the Sentencing Guidelines now are non-binding, but presumably the ones the Sentencing Commission made non-binding even before Booker are intended to be given even less consideration by sentencing judges.

But less is not zero. Whatever the precise standard of review, the sentencing judge must consider the statutory sentencing factors, 18 U.S.C. § 3553(a)—and, the cases say, the policy statements as well, United States v. Flagg, supra, 481 F.3d at 948; United States v. Steele, 603 F.3d 803, 808 (10th Cir.2010); United States v. McKinney, supra, 520 F.3d at 427–28— and must,...