# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued December 4, 2013

Decided January 15, 2014

Before

JOEL M. FLAUM, Circuit Judge

FRANK H. EASTERBROOK, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 13

‐ 2463

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee

,

v.

ULANDERS PATRICK,

Defendant

‐ Appellant

. Appeal from the United States District

Court for the Northern District

of Illinois, Eastern Division.

No. 1:06

‐ cr

‐ 00193

‐ 1

John F. Grady,

Judge

.

O R D E R

Ulanders Patrick challenges, on procedural grounds, his 12

‐ month prison sentence for

violating the provisions of his term of supervised release. Because the district court both

properly considered the guidelines’ policy statements regarding violations of supervised

release and adequately explained its reasons supporting the sentence, we affirm.

Background

On October 11, 2006, Patrick was sentenced to 37 months’ imprisonment, to be NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 13

‐ 2463 Page 2

followed by three years of supervised release, pursuant to a guilty plea to a bank

robbery count. He was also required to pay $1,626 in restitution. Patrick began his

supervised release in July of 2009.

On November 21, 2011, Patrick was arrested for theft of services for using the

Chicago transit system without paying. He failed to notify his probation officer of his

arrest. On the Probation Office’s recommendation, the district court modified Patrick’s

supervised release to require him to perform 40 hours of community service.

On June 21, 2012, the Probation Office petitioned the district court to schedule a

show

‐ cause hearing to address Patrick’s violation of the terms of his supervised release.

The asserted grounds for revocation included his arrest for theft of services, as well as

his failure both to complete the required community service and to pay restitution. The

Probation Office noted that Patrick falsely claimed to have diligently attempted to

complete his community service, when in fact he had made negligible effort to contact

the community service organizations made available to him. On July 18 the district

court revoked Patrick’s supervised release and sentenced him to one day of

incarceration, to be followed by an additional year of supervised release. The new term

of supervised release continued to impose a condition that Patrick complete 40 hours of

community service.

When Patrick still failed to either perform the required community service or pay

restitution, the Probation Office on December 10, 2012, petitioned the district court a

second time to revoke his supervised release. The Office recommended, given Patrick’s

financial condition and difficulties in securing employment, that he be sentenced to 120

days in the custody of the Salvation Army to complete his community service. Neither

Patrick nor his attorney appeared at the subsequent show

‐ cause hearing. The court

thereupon scheduled a second hearing for February 6, 2013.

On January 30, before that show

‐ cause hearing could take place, the Probation

Office informed the district court that Patrick had tested positive for marijuana; that he

had been arrested on September 6, 2012, for consuming alcohol on the Chicago transit

system (although charges stemming from that alleged incident had already been

dismissed); and that he had failed to notify the Probation Office of his latest arrest. The

Probation Office reiterated that Patrick had still not completed his community service,

despite repeated orders from the court. It again recommended that Patrick be remanded

to the custody of the Salvation Army for 120 days. As with his previous court date,

Patrick failed to appear for the show

‐ cause hearing on February 6, although this time

his counsel did attend. The district court responded to the Probation Office’sNo. 13

‐ 2463 Page 3

recommendation by increasing Patrick’s required community service to 60 hours, and

ordering that it be completed by May 31, 2013. The court based its order on Patrick’s

“fail[ure] to make a good

‐ faith effort to perform any of the community service

previously ordered by the Court.” 1

On June 5, the court was compelled to hold yet another status hearing regarding

Patrick’s supervised release. Patrick had still not completed his community service

requirement, which had now been outstanding for approximately 18 months. At the

hearing, he argued that he had recently been hired at a new job, and he requested

additional time to complete his community service so that he would remain employed.

The Probation Office informed the court that placement at the Salvation Army was no

longer possible, and recommended a 30

‐ day prison sentence. The policy statements

contained in § 7B1.4 of the Sentencing Commission’s guidelines manual recommend a

sentence of three to nine months for violation of supervised release.

The district court again revoked Patrick’s supervised release. The court expressed

its frustration with Patrick’s failure to explain why he could not perform the required

community service. It remarked that it had previously warned Patrick that, if he failed

to complete his 40 hours, he would face a significant prison term. (As the government

concedes, the district court misremembered this point. It had not previously cautioned

Patrick that prolonged imprisonment could be a consequence of violating the service

condition of his release.) The court remarked “Well, I am sorry, Mr. Patrick, but I think

that I must follow up on what I said I’d do. Otherwise, supervised release becomes a

meaningless exercise.” It further stated that “I have done everything I can to keep this

man out of jail and in pursuit of some sort of gainful employment, but it does not

work.” The district court sentenced Patrick to 12 months in prison.

Discussion

“Appellate review of a sentence for violating the terms of supervised release is

highly deferential.” United States v. Robertson

, 648 F.3d 858, 859 (7th Cir. 2011); United

States v. Kizeart

, 505 F.3d 672, 675 (7th Cir. 2007) (describing such deference as the “the

narrowest judicial review of judgments we know”). Patrick does not challenge the

substantive reasonableness of his 12

‐ month sentence. Instead, he advances two

procedural objections. First, he contends that the district court failed to calculate the

applicable guidelines range for his violation. And second, he argues that the district

court failed to adequately explain its sentence, or to consider the sentencing factors of 18

U.S.C. § 3553(a).

1 In fact, this point was slightly overstated; Patrick had in fact completed two hours of community service.No. 13

‐ 2463 Page 4

At the outset, the government notes that Patrick has forfeited both his arguments by

failing to timely object to any supposed procedural irregularities in the district court’s

sentence. Patrick does not dispute this point, and provides no reason to think he was

denied an opportunity to object to the district court’s sentencing procedure. As a result,

we review his contentions only for plain error. The district court’s sentencing will stand

unless Patrick “can demonstrate an error that is plain, that affects his substantial rights,

and that seriously affects the fairness, integrity or public reputation of the judicial

proceeding, effectuating a miscarriage of justice.” United States v. Iacona

, 728 F.3d 694,

699 (7th Cir. 2013). Patrick’s contentions fall far short of meeting that high standard.

I. The Commission’s Policy Statements

Patrick’s first procedural argument is that the district court failed to accurately

calculate the applicable guidelines range. The problem with this argument is that there

is no applicable guidelines sentence governing violations of supervised release. The

Sentencing Commission has merely issued policy statements in § 7B1.4, which have less

force than guidelines. “[P]olicy statements

. . . are neither guidelines nor interpretations

of guidelines.” United States v. Hill

, 48 F.3d 228, 231 (7th Cir. 1995); see Robertson

, 648

F.3d at 859 (policy statements “are intended to be given even less consideration” than

the advisory guidelines); Kizeart

, 505 F.3d at 675 (“[T]he Sentencing Commission ʹ s

decision not to issue [formal] Guidelines implies that the sentencing court should have

more than usual flexibility in sentencing for violations of conditions of supervised

release.”). Patrick cites no authority suggesting that the failure to treat a policy

recommendation as a guidelines range is error, let alone plain error affecting the justice

of his sentencing.

In response, Patrick notes that Section 3553(a)(4)(B) requires the district court, in

sentencing a defendant for violation of supervised release, to “consider

. . . the

applicable guidelines or policy statements issued by the Sentencing Commission.”

Indeed, “when deciding whether to revoke a term of supervised release, the district

court must begin its analysis with the recommended imprisonment range found in the

Guidelines.” United States v. Snyder

, 635 F.3d 956, 959 (7th Cir. 2011); United States v.

Neal

, 512 F.3d 427, 438 (7th Cir. 2008) (holding the same, and noting that “these ranges

inform rather than cabin the district court ʹ s sentencing discretion”) (citation and

quotation marks omitted). And in Robertson

, this court noted that “the sentencing judge

should give a reason, however brief, for ignoring such recommendations.” 648 F.3d at

860.

However, the district court did consider the Commission’s policy suggestions,No. 13

‐ 2463 Page 5

which were reflected in the Probation Office’s proposed sentence. Even though the

court did not explicitly recite the recommendation, it considered a lower sentence than

recommended by the Commission—i.e., the one

‐ month term suggested by the

Probation Office. See United States v. Pitre

, 504 F.3d 657, 664 (7th Cir. 2007) (affirming a

sentence against procedural challenge because “[t]he court

. . . indicated that it had

considered a period of confinement at or below the recommended range of three to nine

months” before imposing a longer term, even if it did not explicitly recite the policy

recommendation). And the court clearly enunciated its reasons for rejecting such a

sentence, including Patrick’s persistent and unexplained failure to perform community

service and the need to promote respect for and compliance with conditions of

supervised release. The district court repeatedly explained to Patrick why his dilatory

conduct showed contempt for the terms of his release, and gave him several

opportunities either to offer arguments in mitigation or to comply with its orders. This

case is therefore clearly distinguishable from the unexplained sentence in Robertson

, in

which the court “didn ʹ t give a reason” for the sentence imposed. 648 F.3d at 859; see

Snyder

, 635 F.3d at 962 (7th Cir. 2011) ( finding that “there is nothing in the record”

indicating that the court “carefully reviewed the Guidelines range”).

In sum, the district court plainly satisfied its obligation to consider the Sentencing

Commission’s policy position. “[I]t is clear from the totality of the judge ʹ s statements

that he considered and discounted [the Sentencing Commission’s] policy arguments.”

United States v. Reyes

‐ Medina

, 683 F.3d 837, 842 (7th Cir. 2012). See United States v.

Jackson

, 547 F.3d 786, 793 (7th Cir. 2008) (“[T]he judge ʹ s comments at sentencing, as

recounted above, clearly indicated that he properly incorporated consideration of the

. .

. policy statement into his overall § 3553(a) analysis.”).

II. The District Court’s Sentencing Explanation

Patrick’s second procedural contention fares no better. The district court extensively

considered the need to promote respect for the law, in this case the terms of supervised

release. It noted that a one

‐ year sentence would deter other offenders from ignoring the

terms of their release. It considered an alternative sentence—120 days with the

Salvation Army—before deciding that this alternative was both unavailable and

insufficient to correct Patrick’s defiance of the court’s orders. The court was not

required to list the Section 3553(a) factors or to exhaustively consider each one. In

Robertson

, this court noted that the sentencing judge “must

. . . say something that

enables the appellate court to infer that he considered [the sentencing factors].” 648 F.3d

at 860. The district court in this case said more than enough to demonstrate that it had

considered the Section 3553(a) factors and to explain the reasons supporting theNo. 13

‐ 2463 Page 6

sentence.

Finally, Patrick contends that the district court failed to address his arguments in

mitigation regarding his successful drug treatment, recent employment, and his ability

to avoid recidivism. However, the court also heard evidence that Patrick had tested

positive for marijuana, had been unemployed for much of the term of his supervised

release, and had been arrested twice in that period. Patrick’s arguments for mitigation

are therefore frivolous and did not warrant a response from the district court. See United

States v. Gary

, 613 F.3d 706, 709 (7th Cir. 2010) (“The judge need not be explicit where

anyone acquainted with the facts would have known without being told why the judge

had not accepted the argument.”) (citation and quotation marks omitted). The court did

not err in explaining its sentence, and even if it had, we find that such an error in this

case would not constitute a miscarriage of justice.

Conclusion

Because Patrick’s procedural arguments are meritless, we AFFIRM the decision of

the district court.