United States v. Dawson, 111920 FED7, 20-1233

Docket Nº:20-1233
Opinion Judge:ST. EVE, CIRCUIT JUDGE
Party Name:United States of America, Plaintiff-Appellee, v. Devin Dawson, Defendant-Appellant.
Judge Panel:Before Hamilton, Scudder, and St. Eve, Circuit Judges.
Case Date:November 19, 2020
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Devin Dawson, Defendant-Appellant.

No. 20-1233

United States Court of Appeals, Seventh Circuit

November 19, 2020

Argued September 23, 2020

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:16-cr-00805 - Ronald A. Guzman, Judge.

Before Hamilton, Scudder, and St. Eve, Circuit Judges.

ST. EVE, CIRCUIT JUDGE

Devin Dawson violated the conditions of his supervised release after his release from prison. One of Dawson's violations was possessing a loaded, semiautomatic firearm. That violation separately resulted in state criminal charges. The state charges were still pending when the federal district court in this case revoked Dawson's supervised release and imposed a new 24-month prison term. On appeal, Dawson says the district court chose its 24-month sentence-the statutory maximum-to punish him for possessing the firearm, when it should have focused on his breach of the court's trust and left any punishment to the state-court system. He also submits that the court disregarded his mitigation arguments and the relevant sentencing factors, and that the sentence was plainly unreasonable. We see no error and affirm.

I. Background

Dawson received his original prison sentence after he pled guilty in the Northern District of Iowa to conspiring to transport stolen property in interstate commerce, in violation of 18 U.S.C. §§ 371 and 2314. This charge arose from Dawson's role in a shoplifting scheme that targeted hardware and home-improvement stores throughout the Midwest. For his role in the scheme, Dawson received 18 months of prison followed by three years of supervised release. The sentencing judge ordered Dawson to pay $12, 451.52 in restitution to the stores victimized by the shoplifting spree. Dawson got out of prison and began supervised release in July 2018. In November 2018, the Northern District of Illinois assumed jurisdiction over Dawson's supervised release.

A. Supervised Release Violations

Less than a year after his release from prison, Dawson's probation officer asked the district court to revoke Dawson's supervised release because Dawson had violated several of its conditions. The most serious violation was possession of a firearm. Police officers had stopped Dawson and his brother for traffic violations. After making the stop, but before exiting the squad car, the officers saw Dawson-who was sitting in the front passenger seat-bend forward out of sight and then reappear. When the officers searched the car, they found a loaded 9mm semi-automatic blue steel Glock Model 19 with a 30-round magazine under Dawson's seat. The officers arrested Dawson and he was charged in state court with unlawful use of a weapon and aggravated unlawful use of a weapon. He was later released to home confinement on electronic monitoring. As for the other violations: one was using controlled substances and failing to submit to periodic drug testing. Another was failing to tell probation that he had received a ticket for running a stop sign and driving without a license. And the last was failing to make restitution payments.

A few months later, probation notified the court of a fifth violation, again stemming from a traffic stop. This time, Dawson had failed to produce a license or proof of insurance and had given the investigating officer his brother's name and date of birth. The lie did not hold up; Dawson soon confessed his real name and the officer learned that he was driving on a suspended license. The officer searched the car and found an electronic-monitoring device for home confinement in the trunk. The device had been altered to include a battery-based power supply. After Dawson admitted that he was on home confinement, the officer arrested him. Dawson faced additional state criminal charges for this conduct.

B. Preliminary Revocation Hearing

The district court held two hearings on the revocation of Dawson's supervised release. The first took place on December 4, 2019. At this hearing, the government told the court that the parties had agreed that the government would rely on police reports alone to prove the firearm violation. Dawson, however, insisted that the parties had reached no such agreement. After noting the apparent misunderstanding between the parties, the court addressed the government as to how it wished to proceed on the firearm violation: [W]hat the government has to do ... is to decide: Is a violation of a person on supervised release to the Federal Court, based upon the allegation that he was in possession of a loaded 9 millimeter semiautomatic Glock firearm while he was on supervision sufficiently serious for the government to want to proceed on a violation?

Because I will tell you what happens in State Court, is they have 500 of these a day and they do literally nothing. In fact, the last time I had this very same issue before me, the defendant chose to admit the violation, I entered a disposition which included more jail time, and on that basis the State Court dismissed the actual allegations of the State criminal proceeding.

So if there is going to be any real sanction for this, in my opinion it will be here, not in the overburdened, overloaded State Courts that have insufficient resources or manpower.

Given that Dawson did not agree to proceeding by way of proffer, the court gave the government more time to consider whether to call witnesses to prove the firearm violation.

C. Final Revocation Hearing

The court held the second and final revocation hearing on January 29, 2020. To prove the firearm violation, the government called one of the officers who stopped Dawson and his brother to testify about finding the firearm under Dawson's seat. For his part, Dawson called another officer who was involved in the stop to testify about his version of the events. Relying on a supposed contradiction between the officers' testimony, Dawson argued that the government had not proved that he, rather than his brother, possessed the firearm. The court found by a preponderance of the evidence that Dawson had possessed the firearm and thereby violated his supervised release conditions. Dawson did not contest the other four violations, though he offered context for two of them. On the controlled substances violation, Dawson argued that his missed drug tests were not evidence of drug use because some preceded his release from custody and the rest were surrounded by negative tests. On the restitution violation, Dawson submitted a sworn statement explaining his limited ability to pay. The court found that the government had proved each of the violations.

The court moved next to the appropriate sentence for the violations. The advisory Guidelines range was 6 to 12 months in prison. The statutory maximum was 24 months. Dawson's counsel requested nine months. He stressed the positive aspects of Dawson's life, including that Dawson was working long hours and taking care of his niece after his brother's passing, and that he was expecting a child with his girlfriend. Dawson's counsel reminded the court that the point of a revocation sentence is to sanction a defendant's breach of trust-not to punish the defendant for the violative conduct. The government and probation recommended 12 months. The government agreed that the court should sanction Dawson's breach of trust and argued that Dawson's violations-in particular, his firearm and electronic-monitoring violations-displayed a complete disregard for court orders and the conditions of supervised release. Before imposing its sentence, the court asked Dawson's counsel a follow-up question: "As a breach of trust, do you interpret that to mean that I should not take into account what the defendant actually did? That, for example, missing a urine drop should have the same effect as shooting someone in terms of the violation?" Defense counsel responded, "No, Judge. I'm not saying that."

The court revoked Dawson's supervised release and sentenced him to 24 months' imprisonment with no supervised release to follow. In explaining the sentence, the court focused first on the electronic-monitoring violation: I find that the defendant has definitely shown a lack of respect for the conditions of supervised release. He has violated them in various ways and shows a clear lack of respect for court orders in general when he violates an electronic monitoring order, is found driving around [in] the middle of the night with a hijacked electronic surveillance gadget attached to a battery.

The court turned next to Dawson's failure to make restitution payments despite his ability to pay at least some amount. "The Court is mindful that it's not easy, that it is a hardship to have to use some of your hard-earned money to pay the restitution, but it was part of the Court's order and should have been respected. It was not." As for Dawson's missed drug tests, the court considered them a "technical violation" given Dawson's explanation for them, which probation had agreed with.

The main problem, in the court's view, was the firearm violation. It explained why it considered this violation particularly "egregious": In a city where innocent people are shot every day, where you turn on the news or pick up the newspaper and you find another horrible weekend where so many dead and so many injured, for this defendant to be in possession of a killing machine like a 9mm semiautomatic Glock with an extended cartridge is beyond the realm. It's just beyond anything that I can understand. And to do so while he's on the Court's supervision is not only an affront to the Court, but it's a danger to the community. It shows that he lacks any real interest in rehabilitation. I...

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