### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 17

‐ 2151

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

C HAD E. M ARMION

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 13

‐ 10035

‐ 004

— Sara Darrow

, Judge

.

____________________

A RGUED F EBRUARY 27, 2018

— D ECIDED M ARCH 15, 2018

____________________

Before W OOD

, Chief Judge

, and B AUER and B ARRETT

,

Circuit Judges

.

P ER C URIAM

. Chad Marmion asserts procedural challeng

‐

es to the 35

‐ month prison sentence he received after he vio

‐

lated his supervised release. Because the district judge con

‐

sidered the relevant policy statements and explained her

reasoning, we affirm the judgment.2 No. 17

‐ 2151

A federal grand jury charged Marmion and three code

‐

fendants with conspiracy to manufacture methampheta

‐

mine. They each pleaded guilty, and Marmion’s codefend

‐

ants received lengthy sentences (63 months, 144 months, and

168 months), while Marmion received relative leniency.

He had faced a statutory minimum of at least 120 months’

imprisonment and a guidelines range of 121 to 151 months. 1

But because Marmion provided substantial assistance to the

government and successfully completed the district court’s

Pretrial Alternatives to Detention Initiative, Chief Judge

Shadid sentenced him to just 174 days’ time served and 10

years’ supervised release.

Two and a half years later, Marmion’s probation officer

petitioned to revoke his supervised release. The petition al

‐ leged that Marmion had been charged in state court with

possessing methamphetamine, had failed a recent drug test,

and had admitted recent use of methamphetamine.

The case was reassigned to Judge Darrow, who held a

revocation hearing. At the hearing, the government with

‐

drew the allegation that Marmion had been charged with

possession of methamphetamine. Marmion then admitted

that he had used methamphetamine ten times within the

previous six months while on supervised release. Based on

this Grade B violation and Marmion’s criminal history cate

‐

gory of III, the judge calculated a maximum term of 60

months’ imprisonment, with a recommended range of 8 to

1 The government filed a notice under 21 U.S.C. § 851 to increase

Marmion ʹ s mandatory minimum to 240 months. Marmion challenged the

enhancement, but his challenge was never resolved, so the district court

referred to the 120

‐ month minimum at sentencing and during the revo

‐

cation proceedings.No. 17

‐ 2151 3

14 months. Both sides concurred with the judge’s recitation

of the relevant policy statements and declined to introduce

evidence in aggravation or mitigation. The government

asked the judge to impose a 36

‐ month sentence, and Marmi

‐

on asked for a sentence of around 8 months.

Judge Darrow sentenced Marmion to 35 months’ impris

‐

onment with no additional supervised release. In explaining

her choice of sentence, the judge twice referenced a policy

statement that advises that upon revocation “an upward de

‐

parture may be warranted” if the defendant’s “original sen

‐

tence was the result of a downward departure,” U.S.S.G.

§ 7B1.4 cmt. n.4. The judge concluded that although a 60

‐

month sentence would be reasonable in this case, 35 months

was “sufficient, but not greater than necessary” to promote

respect for the law, to avoid a disparity with the sentences of

Marmion’s codefendants, and to provide graduated pun

‐

ishment for Marmion’s recurring violations of the law.

In this court, Marmion first asserts that “the district court

did not consider the guideline range during its sentencing

analysis.” This assertion is patently false because the judge

correctly calculated the advisory range and opined—

consistent with the suggestion in application note 4 to sec

‐

tion 7B1.4 of the Sentencing Guidelines—that the sentence

should account for the downward variance that Marmion

received at his initial sentencing. Thus, there is no basis for

Marmion’s contention that the judge did not use the policy

statement range as the “benchmark” of her sentencing anal

‐ ysis.

Marmion also faults the district judge for comparing his

sentence to the substantial sentences received by his code

‐

fendants. As Marmion sees it, his codefendants were not4 No. 17

‐ 2151

similarly situated with him because they did not participate

in the Pretrial Alternatives to Detention Initiative. He asserts

that the judge instead should have compared his sentence to

“defendants whose supervised release was revoked for one

positive drug test in two years.”

Marmion’s argument is wrong for at least three reasons.

First, Marmion forfeited it by not raising it during the revo

‐

cation proceedings. See United States v. Oliver

, 873 F.3d 601,

607 (7th Cir. 2017). Second, Marmion’s original sentence was

less than five percent of the statutory minimum, which dis

‐ tinguishes him from his codefendants and most defendants

facing revocation. Finally, the judge necessarily considered

the need to avoid unwarranted sentencing disparities when

she properly reviewed the relevant policy statements. See

Gall v. United States

, 552 U.S. 38, 54 (2007); United States v.

Snyder

, 635 F.3d 956, 961 (7th Cir. 2011).

AFFIRMED