### n the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3673
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

T ODD J ONES , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Central District of Illinois

. No. 07

- cr

- 10023

- 001

— Michael M . Mihm
, Judge

.

____________________
A RGUED S EPTEMBER 19, 2014

— D ECIDED D ECEMBER 16
, 2014

____________________

Before B AUER , R OVNER , and W ILLIAMS , Circuit Judges

. R OVNER , Circuit Judge

. After being charged with conspi racy to distribute fifty or more grams of crack cocaine and three other drug charges, Todd Jones caught some lucky breaks. He pleaded guilty to the conspiracy and , in return, the district court dismissed the remaining charges on the government’s motion. Jones qualified for the safety valve provision, and then became the beneficiary of a retroactive amendment to the United States Sentencing Guidelines2 No. 13

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which ultimate ly led to a forty

- six month sentence, followed by five years of supervised release. The conditions of supe rvised release required, among other things, that Jones refrain from any non

- prescribed use of controlled substances, and submit a truthful written re port to his probation officer wit hin the first five days of each month. For a man originally fa cing a statutory minimum of 10 years’ imprisonment, Jones’s 3.8 year sentence would seem to be a gift. Unfortunately, Jones looked this gift horse in the mouth. Six months after he completed his sentence of incarceration and began his supervised release, in January 2011, he was caught driving on a suspended license and charged with o bstructing a police officer. As a result, the court modified his conditions of su pervised release to require twenty

- five hours of community service and completion of a cognitive beha vioral therapy program. Jones accomplished both, but could not seem to keep himself out of trouble. In February 2012, he allegedly resisted an officer duri ng a traffic stop for spee ding; in October 2012, he was charged with aggravated ba ttery relating to a bar fight; and in June 2013, he was charged with battery relating to another fight. Each time he eluded consequence either because the state filed no char ges or d eclined to prosecute at a complaining witness’s request. At the same time, Jones was having trouble complying with other aspects of the requirements of his supervised r elease. After his release from prison he moved in with his girlfriend and mother of his child, but on December 27, 2012, she called Jones’s probation officer and told him that she wanted Jones to move out immediately. The probation o fficer directed Jones to report to the probation office in Rock Island the next day, but he failed to d o so. For the next two weeks he lived with a friend in Galesburg, Illinois, until she forced him to leave because she did not want her address registered with the probation office. On January 9, he movedNo. 13

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to another friend’s home, but by April 2013, he was again homeless. That situation continued into May 2013, but he did not report his homelessness to his probation office as he feared the officer would “ride him” and direct him to stay in a shelter, which he did not want to do. Jones failed to file his
mont hly probation reports for April, May, June, or July 2013. He also failed to report to the probation office as directed on December 28, 2012. After the battery charges against him were filed in June, the probation officer tried to find Jones, but remained u nsuccessful until August 2013, when he located Jones at his own apartment in Galesburg. Having been found, Jones r eported for a probation office visit on August 14, where his urine tested positive for marijuana. Only one other of his fi fty

- three timely ur ine samples tested positive for a controlled substance

— the one taken on September 14, 2011

— but twe nty

- four more tests were submitted late, and, of course, he was unavailable to the probation office for testing for four months in mid

- 2013. On August 23, 2013, the probation office filed a petition to revoke Jones’s supervised released based on seven alleged violations of the conditions of his release: two incidents of failing to report to the probation office, twice resisting a peace officer, aggravated ba ttery, battery, and possession of marijuana. Jones agreed to admit to the possession of mar ijuana and two incidents of failing to report, in exchange for an agreement by the government to withdraw the remaining allegations. The violation report prepared by the probation officer for the court noted that upon revocation, the court could impose a prison sentence up to the maximum sentence permitted by 18 U.S.C. § 3583(e)(3), which is three years for a Grade B vi olation. The Sentencing Guidelines recommended fo ur to ten months’ imprisonment for a Grade B violation by a Category4 No. 13

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I offender. U.S.S.G. § 7B1.4 and § 7B1.1. The report also no ted that because the bottom of that range was between one and six months, the Guidelines stated that the minimum four

- month sen tence could be satisfied by either (a) a se ntence of imprisonment or (b) a sentence of imprisonment that included a term of supervised release with a condition that substitutes community confinement or home detention for any portion of the minimum term. Id

. § 7B1.3(c)(1). Pu rsuant to 18 U.S.C. § 3583(h), the court could also impose an additional term of supervised release up to the term that the statute for the original offense authorized, less any term of imprisonment imposed upon revocation. The statute f or the original offense authorized a life term of both imprisonment and supervised release. 21 U.S.C. § 841(b)(1)(A)(iii). At the sentencing, the prosecutor highlighted Jones’s unwillingness to submit to authority and to comply with the conditions of his s upervision. Jones’s attorney emphasized the relatively minor nature of the violations and the fact that Jones was recovering from back surgery, had established a stable residence, had committed no violations while on bond awaiting the revocation sentencing , had successfully co mpleted a welding program, a substance

- abuse evaluation (where he was found to not have a substance abuse pro blem), and a cognitive behavioral therapy program. Jones’s attorney asked the court to substitute home confinement for any per iod of imprisonment, but did not make any requests nor any mention whatsoever regarding additional supe rvised release. The court, after accepting his guilty pleas and finding him guilty of the supervised release violations, announced a sentence of four mon ths

— the bottom of the Guidelines range, followed by a thirty

- six

- month period of supervised release. The court stated, “It looks to me from reading this [presentence report] that we did not have the defendant’sNo. 13

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full attention, especially after he got his w elding degree. And then going for months without filing a report indicates again, I think, what his attitude is here.” (Tr. 11/26/13, p. 18

- 19). The court then advised Jones to contact his probation officer when issues, like loss of housing, arose.
Jones addressed the court stating that he thought, by pleading guilty, that he would not have continued supe rvised release after his sentence. He noted that he had been on probation for forty

- one months and thought another thi rty

- six was excessive. The court res ponded by saying: Well, that’s something we always think about, but in your case, I think it’s necessary to put you back on supervised release...“[I]f you get into that period of supervision for a year, year and a half and you’re still okay, you’re not commi tting violations, then I would consider the possibility of early discharge.

Id. p. 22

- 23. Jones completed the imprisonment portion of his sentence on May 30, 2014, but on appeal argues that the term of supervised release and imprisonment were plainly unre asonable. Our review of a sentence for violating a term of supe rvised release is highly deferential, and we will uphold that term unless it is “plainly unreasonable.” See U.S. v. Kizeart
, 505 F.3d 672, 674 (7th Cir. 2007). Jones argues that the court violated his due process rights under the Fourteenth Amendment by failing to consider a lternatives to incarceration. Jones really means to invoke the due process clause of the Fifth Amendment which applies to the federal government. In either case, however , the S upreme Court has “considered whether the Due Process6 No. 13

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Clause of the Fourteenth Amendment generally requires a sentencing court to indicate that it has considered altern atives to incarceration before revoking probation,” and co ncluded that it does not

. Black v. Romano , 471 U.S. 606, 607, 613 (1985). The defendants cite a string of cases from the 1970s and 1980s, including the Eighth Circuit’s appellate decision in Black v. Romano , 735 F.2d 319 (8th Cir. 1984), but that very case was overturned by the S upreme Court (as we cited above), which also rejected not only the reasoning in Black itself, but also made clear that the holdings in the two other two cases on which Jones relies

— Gagnon v. Scarpelli , 411 U.S. 778 (1973) and Morri s sey v. Brewer , 408 U.S. 471 (1972), do not compel a court to consider alternatives to incarceration in probation revocation proceedings. Jones received all the process due him at his revocation proceedings. He was given adequate notice, represented at all times, appeared at the h earing, and was afforded an o pportunity to make a statement and presen t information in mitigation. See Fed. R. Civ. P. 32.1 , and U.S. v. LeBlanc, 175 F.3d 511, 515 (7th Cir. 1999) ( Rule 32.1 largely cod ified Morrissey v. Brewer, 408 U.S. 471, 489 (1972)
, which d efined Fifth Amendment due process rights, including a li mited confrontation right, in parole revocation hearings)

. As the government points out, the district court could not have abused its discretion, much less plainly erred, when it revoked super vised release after Jones admitted that he po ssessed marijuana, as such a revocation is mandatory under 18 U.S.C. § 3583(g)(1) (“If the defendant possesses a co ntrolled substance in violation of [a condition of supervised release]...the court shall revoke th e term of supervised r elease and require the defendant to serve a term of impri sonment. ...”) U.S. v. Hondras
, 296 F.3d 601, 602 (7th Cir. 2002)

.No. 13

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Jones also claims that his sentence was plainly unreaso nable because the district court did not give appropriat e weight to the policy statements and sentencing factors in 18 U.S.C. § 3553. Both the term of incarceration and the term of supervised release were within the range suggested by the Guidelines and thus are presumed to be reasonable on a ppeal. Gall v. U.S. , 552 U.S. 38, 51 (2007); U.S. v. Horton
, 770 F.3d 582 , 585 ( 7th Cir. 2014) . Moreover, his assertion that the court failed to consider the Chapter 7 policy statements and § 3553 factors is both generic and unsupported and also factually incorrect.
Jones n ever states which policy factors the court should have considered other than to say that the district court should have given appropriate weight to U.S.S.G. Ch. 7 pol icy statements. That is the beginning and end of his discu ssion of the matter. For this re ason, we deem the argument waived ( U.S. v. Bryant
, 750 F.3d 642, 651 ( 7th Cir. 2014) ). But even were it not, the court did indeed consider Guidelines Chapter 7 when sentencing Jones, specifically, chapter 7B1.4. The court reviewed the Sentencing Report which turned to the Revocation Table in § 7B1.4 of the policy statements to calculate that Jones violation qualified as a Grade B violation and that he had a criminal history of Category I which led to a Guideline range of four to ten months, and supervise d r elease up to life less any term of imprisonment imposed on revocation. (Tr. 11/26/13, p.5

- 6). After announcing the range, the court selected a sentence at “the bottom of the guideline range [as] the proper place; that’s four months.” (Tr. 11/26/13, p.20 ). The court also considered substituting community confinement for a term of imprisonment, first listening to Jones’s lengthy position that

home confinement in this situation would be appropriate because there is now a stable res idence that he has that he could be confined to.8 No. 13

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Electronic monitoring can be put in place, and he can continue to look for a job and partic ipate in physical rehabilitation. To order him to jail or to prison at this point, Your Honor, would really defeat the purpose, which is to ha ve stable housing to get on the right track, and to be able to comply with all the cond itions of supervision which he has been doing since he was released on bond. (Tr. 11/26/13, pp.17

- 18). Having heard the argument, the court then queried the government a bout its “position on home confinement here.” Id. p.18. The government respon ded by saying that it was asking for a sentence of impriso nment within the range. Id

. As for the § 3553 sentencing factors, circuits are split as to whether a district court need consider § 3553 factors when, as here, the revocation is mandatory under § 3583. Compare
, U.S. v. Thornhill
, 759 F.3d 299, 311 ( 3d Cir. 2014) (stating that, “Meaningful consideration of the § 3553(a) factors is also r equired in revocation proceedings. ”) w ith U.S. v. Garza
, 706 F.3d 655, 658 (5th Cir. 2013) ; U.S. v. Giddings , 37 F.3d 1091, 1095 (5th Cir. 1994) (holding that “when revocation...is mandatory under 18 U.S.C. § 3583(g), the statute does not require consideration of § 3553(a) factors

. ”). We need no t d etermine where our Circuit stands, as the district court did indeed consider § 3553 factors. A court need not consider the § 3553 factors in check

- list form. The district court judge need only form an adequate
statement of her reasons, consistent with section 3553(a), for thinking the sentence that s he has selected is indeed appr opriate for the particular defendant. U.S. v. Polloc k, 757 F.3d 582, 591 ( 7th Cir. 2014) . The explanation must be sufficient to allow a court of appeals to assess the reasonable ness of theNo. 13

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sentence imposed. U.S. v. Conaway
, 713 F.3d 897, 903 ( 7th Cir. 2013)

. In this case, the court noted that Jones’s multiple viol ations indicated that the court “did not have the defendant’s full attention, especially after he got his welding degree.” And the court also noted that Jones’s failure to report for four months indicated that his attitude was not respectful of the process. (Tr. 11/26/13, p.18

- 19). Furthermore, the court’s statement that it might discharge the second half of the s upervision period if Jones exhibited improved behavior, demonstrates that the co urt was indeed thinking about § 3553 factors such as the characteri stics of the defendant, deterrence, the need to protect the public from further crimes, and the need to promote respect for law and provide just punishment. See 18 U.S.C. § 3553. The amount of justification that an appeals court will r equire of a district court depends on how far the judge ’s se ntence departs from the G uidelines sentence

. Gall v. U.S.
, 552 U.S. 38, 51 (2007); Conaway
, 713 F.3d at 903 . In this case, the four month imprisonment sentence was the lowest se ntence possible within the Guideline ran ge. The supervised release portion of the sentence was also well

- within the available range which allowed for lifetime supervision. Gi ven the fact that both the sentence and the supervised r eleased were within the Guidelines range (and indeed, on the very low end), the judge’s justification for the sentence was sufficient. Jones has never directed this court “to anything specific that the district court failed to consider or take into account.” Pollock
, 757 F.3d at 591 . The crux of his argument is only that his violations were minor, and that “some of the things that he’s done are good,” (Tr. 11/26/13, p.16) and that he is therefore not deserving of even the lowest end sentence and the term of supervised release imposed . But this is just the10 No. 13

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type of discretionary decision that belongs to a district court judge. Despite being given a second chance by his low

- end sentence on the merits, Jones could not keep himself in line while on supervised release. The district court fe lt that the low

- end sentence of four months imprisonment followed by thirty

- six months of supervised release would get Jones’s a ttention and keep him on the straight and narrow. We see no reason to disagree.

AFFIRMED.