n the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3673

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TODD JONES,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 07-cr-10023-001 — Michael M. Mihm, Judge.

____________________

ARGUED SEPTEMBER 19, 2014 — DECIDED DECEMBER 16, 2014

____________________

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

ROVNER, Circuit Judge. After being charged with conspiracy 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 Guidelines 
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which ultimately led to a forty-six month sentence, followed 

by five years of supervised release. The conditions of supervised release required, among other things, that Jones refrain 

from any non-prescribed use of controlled substances, and 

submit a truthful written report to his probation officer within the first five days of each month. For a man originally facing 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 obstructing a police officer. As a result, the court modified his 

conditions of supervised release to require twenty-five hours 

of community service and completion of a cognitive behavioral therapy program. Jones accomplished both, but could 

not seem to keep himself out of trouble. In February 2012, he 

allegedly resisted an officer during a traffic stop for speeding; in October 2012, he was charged with aggravated battery 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 charges or declined 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 release. 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 officer directed Jones to report to the probation office in Rock 

Island the next day, but he failed to do 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 moved 
No. 13-3673 3

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 

monthly 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 unsuccessful until August 2013, when he located Jones at his 

own apartment in Galesburg. Having been found, Jones reported for a probation office visit on August 14, where his 

urine tested positive for marijuana. Only one other of his fifty-three timely urine samples tested positive for a controlled 

substance—the one taken on September 14, 2011—but twenty-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 battery, battery, and possession of 

marijuana. Jones agreed to admit to the possession of marijuana 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 violation. The Sentencing Guidelines recommended four to ten 

months’ imprisonment for a Grade B violation by a Category 
4 No. 13-3673

I offender. U.S.S.G. § 7B1.4 and § 7B1.1. The report also noted that because the bottom of that range was between one 

and six months, the Guidelines stated that the minimum 

four-month sentence could be satisfied by either (a) a sentence 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). Pursuant 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 for 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 supervision. 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 completed a welding program, a substance-abuse evaluation 

(where he was found to not have a substance abuse problem), and a cognitive behavioral therapy program. Jones’s 

attorney asked the court to substitute home confinement for 

any period of imprisonment, but did not make any requests 

nor any mention whatsoever regarding additional supervised release.

The court, after accepting his guilty pleas and finding 

him guilty of the supervised release violations, announced a 

sentence of four months—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’s 
No. 13-3673 5

full attention, especially after he got his welding 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 supervised release after his sentence. He noted that he had been 

on probation for forty-one months and thought another thirty-six was excessive. The court responded 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 

committing 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 unreasonable.

Our review of a sentence for violating a term of supervised 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 alternatives 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 Supreme Court has “considered whether the Due Process 
6 No. 13-3673

Clause of the Fourteenth Amendment generally requires a 

sentencing court to indicate that it has considered alternatives to incarceration before revoking probation,” and concluded 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 Supreme 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 Morrissey 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 hearing, and was afforded an opportunity to make a statement and present 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 codified Morrissey v. Brewer, 408 U.S. 471, 489 (1972), which defined Fifth Amendment due process rights, including a limited 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 supervised release after Jones admitted that he possessed marijuana, as such a revocation is mandatory under 

18 U.S.C. § 3583(g)(1) (“If the defendant possesses a controlled substance in violation of [a condition of supervised 

release]...the court shall revoke the term of supervised release and require the defendant to serve a term of imprisonment. ...”) U.S. v. Hondras, 296 F.3d 601, 602 (7th Cir. 

2002). 
No. 13-3673 7

Jones also claims that his sentence was plainly unreasonable because the district court did not give appropriate 

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 appeal. 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 never 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 policy statements. That is the beginning and end of his discussion of the matter. For this reason, 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 supervised release 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 residence that he has that he could be confined to. 
8 No. 13-3673

Electronic monitoring can be put in place, and 

he can continue to look for a job and participate in physical rehabilitation. To order him to 

jail or to prison at this point, Your Honor, 

would really defeat the purpose, which is to 

have stable housing to get on the right track, 

and to be able to comply with all the conditions 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 about its “position on 

home confinement here.” Id. p.18. The government responded by saying that it was asking for a sentence of imprisonment 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 required in revocation proceedings.”) with 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 not determine 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 she has selected is indeed appropriate for the particular defendant. U.S. v. Pollock, 757 F.3d 

582, 591 (7th Cir. 2014). The explanation must be sufficient to 

allow a court of appeals to assess the reasonableness of the 
No. 13-3673 9

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

Cir. 2013). 

In this case, the court noted that Jones’s multiple violations 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 supervision period if Jones exhibited improved behavior, 

demonstrates that the court was indeed thinking about 

§ 3553 factors such as the characteristics 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 require of a district court depends on how far the judge’s sentence departs from the Guidelines 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 sentence possible within the Guideline range. The supervised 

release portion of the sentence was also well-within the 

available range which allowed for lifetime supervision. Given the fact that both the sentence and the supervised released 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 the 
10 No. 13-3673

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 felt that the 

low-end sentence of four months imprisonment followed by 

thirty-six months of supervised release would get Jones’s attention and keep him on the straight and narrow. We see no 

reason to disagree.

AFFIRMED.