United States v. Taylor

• Decision Date: 26 November 2018
• Docket Number: No. 18-1108,18-1108
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. REANNE S. TAYLOR, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. REANNE S. TAYLOR, Defendant-Appellant.

No. 18-1108

United States Court of Appeals For the Seventh Circuit

Argued November 14, 2018

November 26, 2018

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1

Before FRANK H. EASTERBROOK, Circuit Judge DIANE S. SYKES, Circuit Judge MICHAEL Y. SCUDDER, Circuit Judge

Appeal from the United States District Court for the Western District of Wisconsin.

No. 3:06-cr-8

William M. Conley, Judge.

ORDER

Reanne Taylor violated conditions of supervised release, and at her revocation hearing the district court sentenced her to 24 months' imprisonment. On appeal she argues that the district judge interrupted her lawyer repeatedly and, as a result, failed to consider her mitigating argument that she cooperated with law enforcement. The sentencing transcript belies Taylor's contention and shows that the district court did consider her mitigating argument. Accordingly, we affirm.

I

Taylor was indicted in 2006 for conspiring to distribute methamphetamine and for possessing it with the intent to distribute, 21 U.S.C. §§ 841(a)(1), 846. She pleaded guilty to the conspiracy charge, and the district judge sentenced her to 180 months' imprisonment and 5 years' supervised release. United States v. Briesemeister, 273 F. App'x 534, 536, 538 (7th Cir. 2008). This court affirmed that judgment. See id. at 536.

The district judge later reduced Taylor's sentence twice. The first time came in 2011, after Taylor cooperated with the United States Attorney's office for the District of Minnesota and helped them charge a former associate. At the government's request, the judge resentenced Taylor to 135 months' imprisonment. Then, in 2014, after Taylor had completed 75% of her sentence with good behavior, she moved for a reduced sentence under Amendment 782, a retroactive revision to the Sentencing Guidelines that lowered the base offense levels for most drug crimes. The district court granted her motion and reduced her sentence a second time.

Taylor served her supervised release term until she was arrested in Minnesota for check forgery in 2017. At her revocation hearing, the district court refrained from making specific findings about the Minnesota charge because Taylor's case was still pending, but the judge did find that Taylor had violated several other conditions of supervised release. Specifically, Taylor failed to notify the probation office within 72 hours of being arrested or questioned by law enforcement, left her residence without the approval of her probation officer, did not provide the probation office with a valid updated address, and failed to submit monthly supervision reports to her probation officer. The district court therefore revoked Taylor's supervised release and sentenced her to 6 months' imprisonment, to be followed by 24 months of supervised release.

Almost as soon as Taylor was back on supervised release, she violated yet again. She failed to participate in substance-abuse treatment or go to a residential treatment center as required. She also was arrested a second time in Minnesota, this time for falsely identifying herself to law enforcement.

At the ensuing revocation hearing, the district court noted the policy-statement range of 5 to 11 months' reimprisonment, as well as the statutory maximum sentence of 54 months. See USSG §§ 7B1.1(a)(3), 7B1.4; 18 U.S.C. § 3583(h). The government recommended a sentence within the range suggested by the Chapter 7 policy statements, with no supervision to follow because Taylor had demonstrated trouble with compliance and had rejected "multiple opportunities" to address her substance- abuse problems. Defense counsel first argued that Taylor should not be held accountable for failing to go to the residential center because she was put on the wrong bus, sent to the wrong state, and did not know to whom she should report. And her failure to follow the conditions was merely a "totally immature decision."

Defense counsel then raised the mitigating argument at issue in this appeal—that Taylor contacted unspecified "law enforcement" in Minnesota and cooperated in the government's effort to indict other people engaged in drug activity. The district judge responded that because he was not going to consider the crimes Taylor committed in Minnesota as a mark against her, he likewise would not consider "some offsetting facts," such as the fact that she was cooperating. The judge continued, "I certainly strongly encourage [cooperation] ... but it's not before me today." Next, the judge informed counsel that he would not credit her representation about Taylor's cooperation "in another case, until that comes to fruition" and he received corroboration "from someone." The judge asked defense counsel if she had anything further, and, after requesting revocation with time served, counsel confirmed that she had nothing more.

For her part, Taylor received an opportunity to make a statement to the district judge but she said that she did not "really have anything to say." She did offer that she was going to turn herself in, but "it just didn't happen."

The district court then imposed a sentence of 24 months, well above the range of 5 to 11 months under the applicable policy statements. The judge explained that the sentence was above the suggested reimprisonment range because it was Taylor's "second go-around" with violations of supervised release and he did not see that she had matured in her thoughts and actions. The court explained that the higher sentence would hold her accountable for her egregious noncompliance with conditions of release, including absconding. So, too, would the 24-month sentence promote respect for the law, deter her and like-minded others from similar conduct in the future, and protect the public.

II

On appeal Taylor contends that the district court failed to consider her mitigating argument that she cooperated with and assisted law enforcement in Minnesota. She contends that not only did the district judge "repeatedly interrupt[] counsel's presentation of evidence," but also that the judge said that Taylor's "cooperation was not before him today and he would not consider it." The judge, she argues, violated the Federal Rules by denying Taylor an "opportunity to make a statement and present any information in mitigation." FED. R. CRIM. P. 32.1(b)(2)(E).

But circuit courts have interpreted Rule 32.1(b)(2)(E) to mean only that district courts must allow defendants to allocute—not that they must consider mitigating arguments at revocation hearings. See, e.g., United States v. Thompson, 599 F.3d 595, 599 (7th Cir. 2010); United States v. Fleetwood, 794 F.3d 1004, 1006 (8th Cir. 2015); United States v. Daniels, 760 F.3d 920, 924 (9th Cir. 2014); United States v. Gonzalez, 529 F.3d 94, 97 (2d Cir. 2008); United States v. Carruth, 528 F.3d 845, 846 (11th Cir. 2008). Indeed, the Advisory Committee explains that the purpose of Rule 32.1(b)(2)(E) is to "recognize[] the importance of allocution." FED. R. CRIM. P. 32.1(b)(2)(E) advisory committee's note to 2005 amendment. The district court afforded Taylor the opportunity to allocute, and she did not ask for leniency based on her cooperation, so she cannot rely on the Rule.

While this court has never explicitly said that district judges must consider mitigating arguments raised by defense counsel during revocation hearings, see United States v. Williams, 887 F.3d 326, 328 (7th Cir. 2018), it has...