### In the



# United States Court of Appeals

For the Seventh Circuit

No. 16

‐ 1494

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

K EEFER J ONES

, Defendant

‐ Appellant.

Appeal from the United States District Court for the

Central District of Illinois.

No. 2:02

‐ cr

‐ 20029

‐ HAB

‐ EIL

‐ 1

— Harold A. Baker

, Judge.

A RGUED N OVEMBER 29, 2016

— D ECIDED J UNE 30, 2017

Before B AUER

, F LAUM

, and H AMILTON

, Circuit Judges

.

B AUER

, Circuit Judge. In July 2002, Appellant Keefer Jones

was convicted of possession of crack cocaine with intent to

distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). In

2004, the district court sentenced Jones to 262 months’ impris

‐

onment and eight years’ supervised release. The district court

imposed several conditions of supervised released, including2 No. 16

‐ 1494

drug testing, mental health treatment, and sex offender

treatment. Jones appealed, but did not challenge the conditions

of supervised release. We affirmed. See United States v. Jones

,

455 F.3d 800, 803–04 (7th Cir. 2006).

On November 25, 2014, Jones began serving his supervised

release, but over the following year, he did not comply with

several conditions of that release. In December 2015, Jones’

probation officer filed a petition to revoke his term of super

‐

vised release. The probation officer alleged that Jones violated

four conditions. Specifically, that he: (1) failed to participate in

sex offender treatment; (2) failed to comply with mental health

treatment; (3) violated the Illinois Sex Offender Registration

Act (ISORA); and, (4) possessed a controlled substance.

On March 3, 2016, Jones admitted that he violated all four

conditions. With a Grade B violation and a criminal history

category of VI, Jones’ recommended Guidelines range was 21

to 27 months’ imprisonment. See U.S.S.G. §§ 7B1.1 and 7B1.4.

The government recommended a sentence of 27 months’

imprisonment, while defense counsel recommended a sentence

that did not involve imprisonment so that Jones could keep

his job. Without a discernable explanation, the district court

rejected both recommendations. Relying instead on the

probation officer’s recommendation, the district court sen

‐

tenced Jones to the statutory maximum of 60 months’ impris

‐

onment. This appeal followed.

On appeal, Jones raises two arguments: first, he contends

that he received ineffective assistance of counsel; second, he

argues that the district court committed several procedural

errors in adjudicating his sentence. For the following reasons,No. 16

‐ 1494 3

we affirm the district court’s revocation of supervised release,

and we vacate his sentence and remand for resentencing.

A. Ineffective Assistance of Counsel Claim

First, Jones argues that his counsel was constitutionally

ineffective for advising him to admit to the four violations of

his conditions of supervised release. Specifically, Jones

contends that counsel should have challenged each violation

in various ways. As a preliminary matter, we must address

whether there is an underlying right to counsel in the proceed

‐ ing for which Jones challenges his counsel’s performance. See

United States v. Yancey

, 827 F.2d 83, 89 (7th Cir. 1987) (“There

can be no challenge to the adequacy of counsel unless there is

an underlying right to counsel in a particular proceeding.”).

The Sixth Amendment grants a defendant the right to the

assistance of counsel at all critical stages of a criminal prosecu

‐

tion. Iowa v. Tovar

, 541 U.S. 77, 80–81 (2004). But, a revocation

proceeding is not considered a criminal prosecution under the

Sixth Amendment. United States v. Boultinghouse

, 784 F.3d 1163,

1171 (7th Cir. 2015). Therefore, a defendant “has no Sixth

Amendment right to counsel” in the context of a revocation

proceeding. United States v. Eskridge

, 445 F.3d 930, 933 (7th Cir.

2006); see also Boultinghouse

, 784 F.3d at 1171 (“[T]he Sixth

Amendment does not apply in a hearing convened to decide

whether a defendant’s supervised release should be revoked.”)

(citing United States v. Kelley

, 446 F.3d 688, 690 (7th Cir. 2006));

see United States v. Lee

, 795 F.3d 682, 685 (7th Cir. 2015) (ex

‐ plaining that “the full panoply of rights that the Constitution

guarantees to criminal defendants does not extend” to revoca

‐

tion proceedings).4 No. 16

‐ 1494

However, the Fifth Amendment’s due process clause

accords a defendant certain basic procedural protections,

including a right to representation by counsel under certain

circumstances. Boultinghouse

, 784 F.3d at 1171; see also Gagnon

v. Scarpelli

, 411 U.S. 778, 786 (1973). This right presumptively

attaches when a defendant has a colorable claim that he has not

violated the conditions of release, or if he has “a substantial

case to make against revocation, notwithstanding any viola

‐

tion, that may be difficult to develop or present.” Boultinghouse

,

784 F.3d 1171. The issue now is whether Jones has presented

any claims to which the Fifth Amendment due process right of

counsel would attach.

For two of the violations, Jones challenges his counsel’s

failure to move for modification to remove the conditions that

required sex offender and mental health treatment pursuant to

18 U.S.C. § 3583(e)(2). However, this is neither a claim that he

has not violated the conditions of release, nor a case to make

against revocation, notwithstanding the violations. Instead,

Jones puts forth a claim that is contrary to our precedent. See

United States v. Neal

, 810 F.3d 512, 518 (7th Cir. 2016) (noting

that a defendant properly utilizes § 3582(e)(2) to seek modifica

‐

tion or clarification of a condition without first having to

violate the condition (citing Fed. R. Crim. P. 32.1, Advisory

Comm. Notes (1979))). Therefore, the Fifth Amendment due

process right to counsel would not attach for these two claims.

Third, Jones argues that his counsel should have challenged

the efficacy of his sweat patch that tested positive for cocaineNo. 16

‐ 1494 5

because the results may have been successfully challenged. 1 In

other words, Jones is claiming that it is possible that he may

not have committed the violation. Not only is Jones’ claim

speculative, but also, on top of that, we generally consider

sweat patch results to be a reliable method of detecting the

presence of drugs. See United States v. Pierre

, 47 F.3d 241, 243

(7th Cir. 1995); see also United States v. Meyer

, 483 F.3d 865, 869

(8th Cir. 2007). Jones acknowledges this. For these reasons,

Jones’ claim cannot be deemed colorable. Accordingly, the

Fifth Amendment due process right to counsel would not

attach for this claim.

Fourth, Jones claims that his counsel should have argued

that ISORA did not require him to register a cellphone he used

regularly, but did not own. He claims that his daughter owned

the phone. We will assume without deciding that the Fifth

Amendment due process right to counsel attaches for this

claim.

In absence of other positions being argued, we will also

assume without deciding that the Strickland standard to the

right to effective assistance of counsel applies here. We have

previously assumed one can raise a Strickland claim based on

ineffective assistance in a revocation proceeding. See Eskridge

,

445 F.3d at 932 (citing United States v. Goad

, 44 F.3d 580, 586,

589 (7th Cir. 1995)). But as Eskridge noted, that was “merely an

assumption.” Id.

1 Jones tested positive for cocaine on October 20, 2015, and he also failed to

report for urine testing on the following dates in 2015: March 19, July 8,

September 23, September 29, October 2, and December 22.6 No. 16

‐ 1494

To establish ineffective assistance of counsel, a defendant

must show both deficient performance and prejudice. Strick

‐

land v. Washington

, 466 U.S. 668, 687 (1984). 2 To demonstrate

that counsel’s performance was deficient, a defendant must

show his counsel’s performance “fell below an objective

standard of reasonableness.” Id. at 688. With a record that

is silent on counsel’s strategic motives, we give “every

indulgence

... to the possibility that a seeming lapse or error

by defense counsel was in fact a tactical move, flawed only

in hindsight.” United States v. Recendiz

, 557 F.3d 511, 532 (7th

Cir. 2009) (citation omitted). Because we ultimately conclude

that Jones cannot establish deficient performance, we need not

consider prejudice.

Jones’ counsel had good reason to omit the challenge to the

ISORA violation. First, Jones initially told his probation officer

that the phone “belonged to him.” He later changed his story

and said that it belonged to his daughter. In addition, it was

not unreasonable for Jones’ counsel to forgo strained statutory

interpretation arguments and instead to argue for leniency.

This approach was not objectively unreasonable, especially in

light of our deferential review. Therefore, Jones’ argument

fails.

B. Procedural Sentencing Error

Second, Jones contends that the district court committed a

procedural error in that it provided an inadequate explanation

2 We need not decide whether or how the Strickland standard might

change in the context of a revocation proceeding.No. 16

‐ 1494 7

of the sentence. The government agrees that the district court’s

explanation was inadequate.

We review challenges to the sentence imposed in a revoca

‐

tion proceeding under a “highly deferential” standard. United

States v. Hollins

, 847 F.3d 535, 639 (7th Cir. 2017) (citation

omitted). We will uphold the sentence as long as it is not

“plainly unreasonable.” Boultinghouse

, 784 F.3d at 1177 (citation

omitted). The district court must consider the advisory policy

statements in U.S.S.G. Chapter 7, Part B, and consider the

“factors set forth in 18 U.S.C. § 3553(a), to the extent they apply

to revocations.” Hollins

, 847 F.3d at 539; see also 18 U.S.C.

§ 3583(e). The district court must provide some explanation of

its decision to allow a reviewing court to conduct a meaningful

review. Hollins

, 847 F.3d at 539. The further the sentence

departs from the Sentencing Guidelines range, the more

necessary it is that the district court details its justification.

United States v. Jones

, 774 F.3d 399, 405 (7th Cir. 2014) (citations

omitted).

Based on the sentencing transcript, we are unable to

provide a meaningful review. The district court did not take

into account the Guidelines policy statements, nor did it

mention the applicable 18 U.S.C. § 3553(a) sentencing factors

in a discernable manner. Moreover, the district court also did

not provide any explanation, let alone a detailed justification,

for the substantial upward departure from the Sentencing

Guidelines range. Jones’ Guidelines range was 21 to 27 months’

imprisonment, but the district court sentenced him to the

statutory maximum of 60 months’ imprisonment. The district

court did mention that it found the reasons advanced by the

Probation Service were compelling and persuasive. However,8 No. 16

‐ 1494

we do not know which reasons the district court found

compelling and persuasive. Lastly, the district court did not

explain why it rejected both the government’s and Jones’

sentencing recommendations.

Because we cannot determine the district court’s rationale,

we cannot provide a meaningful review of its decision.

Therefore, we remand for resentencing.

Conclusion

We affirm the district court’s revocation of supervised

release, and we vacate the sentence and remand for a full

resentencing. Circuit Rule 36 shall apply on remand.