In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-2223

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESSE A. SMITH,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Central District of Illinois.

No. 4:08-cr-40067-1 — Sara Darrow, Judge.

____________________

ARGUED OCTOBER 3, 2014 — DECIDED OCTOBER 27, 2014

____________________

Before POSNER, ROVNER, and TINDER, Circuit Judges.

POSNER, Circuit Judge. In 2009 the defendant was sentenced to 24 months in prison, to be followed by 3 years of 

supervised release, for being a felon in possession of a gun. 

After being released from prison in 2011, he violated the 

terms of his supervised release by failing to submit to random drug tests, to attend substance-abuse treatment sessions, and to report to his probation officer. The district 

judge sentenced the defendant to five months in prison for 
2 No. 14-2223

these violations, and to an additional 30 months of supervised release. In 2012 the probation officer, while noting that 

the defendant had generally done well on supervised release, reported that he had twice tested positive for marijuana. The officer suggested, and the judge ordered, modifications in the terms of supervised release. The modifications 

consisted of requiring the defendant to serve 45 days of 

home confinement with electronic monitoring. Later, after 

the defendant had missed several drug tests, the judge ordered him to enroll in a mental health treatment program 

because he’d told the probation officer that he didn’t know 

why he was taking marijuana but was “weak in spirit, depressed, and suffering anxiety.”

To summarize a confusing sequence of events: 1. Smith 

finishes his five months in prison for violating supervised 

release and starts his new supervised-release term of 30 

months. 2. During the new period he tests positive for marijuana twice and admits to using marijuana regularly—for 

this he is punished with 45 days of home confinement. 3. He

tests positive again right after the 45-day home confinement 

begins, then tests negative ten times in a row and mental 

health treatment is added to his conditions of supervised release.

That isn’t the end of our story. The following year (2013),

the probation officer advised the district judge that the defendant had committed five traffic offenses, all in one day. 

The judge revoked the defendant’s supervised release but 

offered him a choice between a five-month sentence of imprisonment followed by two or more years of supervised release, or 14 months’ imprisonment with no supervised release. He chose the first option, and the judge sentenced him 
No. 14-2223 3

to five months’ imprisonment plus two years of supervised 

release.

He was released from prison in October 2013 and in 

April of this year his probation officer advised the district 

court that the defendant had again violated terms of his supervised release both by continuing to use marijuana and by 

violating rules of the halfway house where he lived for a 

time after completion of his prison sentence. Although the 

recommended custody range for these infractions of the 

terms of his supervised release was only 5 to 11 months, the 

government, at the behest of the probation service, asked for 

15 months. Defense counsel suggested six months with continued supervision or eight months with no further supervision. He pointed out that the defendant was now 24 years 

old with three small children, and that employers for whom 

he had worked during the previous two years had been impressed by his work ethic and would be glad to hire him 

back after he was released from prison. The district judge 

(Sara Darrow, not the judge—Joe Billy McDade—who had 

dealt with the defendant previously), describing the case as a 

difficult one, added that the defendant had a bank account 

and actually paid his bills. So he had in her words “great 

foundations and necessary foundations for you to start being 

a man.” But, she added, “I can’t ignore the fact that you were 

given an opportunity already after you had violated supervised release, and you were given help ... . And I can’t go 

back. I can’t take steps back. There hasn’t been enough ... . If 

you hadn’t violated, or if ... your conduct on this newest 

term, or most recent term of supervised release was otherwise exemplary, but for these two positive UAs [urinalysis 

tests for drugs], I might be willing to give you a little bit 

more benefit of the doubt ... . I cannot ignore the fact that 
4 No. 14-2223

you were given a huge break last time around by Judge 

McDade, and you let him and the Court down. I can’t go 

back and give you less than the option than [sic] you had 

back then. I think that would denigrate the seriousness of 

these violations, and of the chance you were given. It would 

promote disrespect for the law, and it would not be an adequate deterrent from [sic] your future conduct.” She sentenced him to 15 months in prison but no more supervised

release.

The defendant argues that Judge Darrow did not exercise 

discretion in sentencing him, but rather was “constrained by 

a sentence suggested by a different district court judge at a 

previous revocation proceeding,” and that “this predetermination of a sentence deprived [the defendant] of his right to 

Due Process[;] and the district court’s failure to exercise discretion is reversible error.”

We’ve said that “a judge can’t be allowed, when imposing conditions of probation (or of supervised release), to 

commit himself to a specified penalty should there be a violation or violations. The number and gravity of any violations that are committed would be germane to any rational 

judgment on whether to revoke probation and, if it is revoked, what punishment to impose for the violations. Any 

significant changes in the defendant’s situation, such as 

mental deterioration, would have to be considered as well. 

We don’t think a judge can be permitted to disable himself 

from considering such factors by committing himself in advance to a specified for any violation of probation, committed at any time, under any circumstances.” United States v. 

Tatum, 760 F.3d 696, 697 (7th Cir. 2014). And by the same token we don’t think a successor judge can be permitted to 
No. 14-2223 5

commit himself in advance to imposing the same sanction 

imposed by his predecessor.

But that’s not what Judge Darrow did. The fact that the 

defendant’s supervised release had twice been revoked was 

something the judge was free, maybe required, to consider 

in deciding what sentence to impose for a third set of violations. That third set hadn’t been very serious, judging from

the recommended sentencing range of 7 to 11 months. But 

the judge was entitled to go above it in light of the defendant’s earlier violations of supervised release. And she went 

only 4 months above the range. She could have sentenced 

him to 24 months instead of 15.

That doesn’t mean that we have to be happy with the 

sentence. The defendant’s problem is marijuana (he admits 

it’s a problem), and quite apart from the issue, which is none 

of our business, whether personal use of marijuana should 

be illegal, we have our doubts that imprisonment is an appropriate treatment for a marijuana habit. (There is no suggestion that the defendant deals, or has ever dealt, in marijuana or any other illegal drug; he’s just a consumer.) The 29 

months that he served in prison beginning in 2009 did not 

break him of his habit; what is the basis for thinking that 14 

more months in prison will? Maybe with a job and a family 

and greater maturity he’ll outgrow it, or reduce his consumption to a level at which it has no significant behavioral 

or psychological ill effects. The fact that he’s impressed his 

employers suggests that he can function even with the habit, 

in which event it might have been better had the judge not 

imposed a prison sentence but instead had ordered a stricter 

regimen of treatment for the defendant’s drug habit. Potential employers are unlikely to hold a job open for 15 months, 
6 No. 14-2223

and there may be no vacancy for the defendant to fill when 

he’s released. Nevertheless we can’t say that the judge 

abused her discretion in sentencing him as she did.

We’re mindful of the defendant’s serious criminal record 

as a youth, part of an unfortunate personal history that includes his father’s being imprisoned for murder and his 

mother’s use of crack cocaine. By the time the defendant first 

appeared before Judge McDade in 2009, age 18, he had a 

criminal history that included battery, burglary, and fighting 

with police officers. His gun offense was committed fewer

than two months after his felony burglary conviction. Regarding the gun offense, Smith admitted that he had been

paid by a crack dealer to store the (loaded) gun. He also admitted having allowed the crack dealer to use his mother’s 

house for the sale of crack. But the defendant’s criminal career, except for continued use of marijuana, ended five years 

ago—which may be why Judge Darrow, in her sentencing 

statement, mentioned only his continued use of marijuana.

She may, however, at least have alluded to a serious consequence, or serious consequences, of that use. One possible 

allusion was to the five traffic offenses. She may have had 

those in mind when she suggested that, had the defendant’s

conduct other than in testing positive twice for marijuana 

been exemplary, she might have given him a lighter sentence 

(maybe no jail time). The traffic offenses—three of which at 

least were serious: driving under the influence, leaving the 

scene of an accident, and resisting arrest—appear to have 

been the result of the defendant’s being high on marijuana. 

And while jail time is unlikely to cure a drug habit, as distinct from interrupting it, it may deter a defendant from us-
No. 14-2223 7

ing drugs at times, such as before driving, that create a risk 

of traffic violations potentially of criminal magnitude.

Alternatively she may have been alluding to the violations that the defendant committed after the third revocation 

of supervised release—testing positive for marijuana twice 

and violating rules of the halfway house. For she referred to 

his “conduct on this nearest term” of supervised release. She 

may have decided that he was an incorrigible supervisedrelease violator who had to be taught a lesson by a stiff prison sentence. And that was her prerogative, whether as an 

original matter we might think it unduly harsh and likely to 

be ineffectual in breaking the defendant’s marijuana habit or 

otherwise altering his behavior.

There are two other issues—besides whether the judge 

was (we think she was not) basing the 15-month prison sentence that she meted out to the defendant on a belief that she 

could not impose a lesser sanction for his violation of supervised release than Judge McDade had done—lurking in this 

case. The first goes to the heart of supervised release. Before 

the Sentencing Reform Act of 1984 replaced parole with supervised release, the Parole Commission determined whether and when a prisoner would be released before the completion of the term to which he’d been sentenced. In making 

that determination the Commission drew on observations by 

prison personnel of a prisoner’s behavior in prison and what 

that behavior augured for the likelihood that he would go 

straight upon release. Supervised release puts the judge in 

the awkward position of trying to predict the defendant’s 

post-release conduct without the benefit of any observation 

of his conduct in prison (since he may be free on bail until 

he’s sentenced, and in any event will not have begun serving 
8 No. 14-2223

his sentence) and any other changes that may have occurred 

since he was sentenced. For the terms of supervised release 

are set at sentencing, though they can be modified later. The 

tendency in sentencing, given the inability of the sentencing 

judge to predict the future, is to err on the side of imposing a 

scattershot of terms of supervised release—20 in this case, 

some duplicative, some that can’t be complied with (in this 

case, for example, that the defendant “shall not associate 

with any person convicted of a felony”—how will the defendant know whether a person he associates with has a felony conviction?—or that he “shall obtain a GED within the

first 12 months of supervision” if he doesn’t have one already; our defendant tried, but fell just short of succeeding).

The most serious problem with the blizzard of supervised-release terms is that it conflates criminality with disobedience. It’s not as if all terms of supervised release address 

crimes. It’s not a crime not to get a GED, or to associate with 

a felon. It remains a crime in most states to possess marijuana even in small (i.e., personal-use) quantities, though a 

number of states now permit its use for medical purposes. 

Possession of marijuana is also a federal crime, but federal 

prosecution for possession of personal-use rather than dealer 

quantities is rare. Legal change and prosecutorial discretion

to one side, public tolerance for marijuana has grown to the 

point of making simple possession of it a radically underenforced crime. It’s been estimated that 38 percent of American 

adults admit having tried marijuana at one time or another, 

Gallup, “In U.S., 38% Have Tried Marijuana, Little Changed 

Since ‘80s,” Aug. 2, 2013, www.gallup.com/poll/163835/

tried-marijuana-little-changed-80s.aspx (visited Oct. 12, 

2013), and the percentage that have tried it (whether or not 

willing to admit having done so) must be higher. The de-
No. 14-2223 9

fendant disobeyed the terms of his supervised release repeatedly, but his current profile is not that of a dangerous 

criminal, and the utility of his continued imprisonment is 

difficult to see.

Nevertheless for the reasons explained earlier we would 

have no choice but to affirm the district court’s judgment, 

though reluctantly, were it not for a document—surprisingly 

mentioned by neither party—that we have discovered in the 

record. The document is entitled “Violation Memorandum” 

(the reference is to the violation of supervised release by the 

defendant) and was prepared by the probation service. It is 

dated February 18, 2011, shortly before the defendant was 

sentenced by Judge McDade for his first violation of supervised release. The document states that the assistant U.S. attorney handling the revocation case was Sara Darrow. When 

the report was prepared, she had already been nominated to 

be a district judge, but she was not confirmed until August 2, 

2011, almost six months later. The hearing at which Judge 

Darrow sentenced the defendant was held on May 29 of this 

year. We don’t know the precise extent of her involvement 

in the 2011 revocation of supervised release. The docket 

sheet reveals that she had appeared before the judge on January 7, 2011, for a hearing on the defendant’s first violation 

of supervised release. We don’t know how extensive her 

participation in that hearing was. Even if it was quite limited, anyone who plays a prosecutorial role in a case might 

be considered ineligible to sentence the defendant in the 

same case, even years later.

We also do not know whether when assigned to the present case in succession to Judge McDade on April 1, of this 

year, or at the sentencing hearing in May, Judge Darrow had 
10 No. 14-2223

any conscious or unconscious memory of having been involved in the earlier revocation. For that matter, we don’t 

know whether the Violation Memorandum and docket entry

are accurate in associating her with the case. Still, on the bare 

record, we cannot exclude the possibility that the sentence 

was influenced by a recollection by the judge, perhaps 

prompted by the defendant’s supervision history prepared 

by the probation service, that she had participated in the defendant’s first revocation hearing, a hearing at which Judge 

McDade had imposed a relatively mild sentence—five 

months in prison plus 14 months of supervised release—to 

no avail.

Section 455(b)(3) of the Judicial Code provides that a 

judge “shall ... disqualify himself ... where he has served in 

governmental employment and in such capacity participated 

as counsel, advisor or material witness concerning the proceeding or expressed an opinion concerning the merits of the 

particular case in controversy.” “Proceeding” is defined to 

include “pretrial, trial, appellate review, or other stages of 

litigation.” United States v. Ruzzano, 247 F.3d 688, 695 (7th 

Cir. 2011), holds that we can correct a clear violation of section 455(b)(3) on appeal even if the defendant failed to invoke the statute in the district court.

The present record is inadequate to enable us to determine whether there was such a violation. We have therefore

decided to suspend our decision of the appeal pending receipt from the parties of supplemental briefs addressing the 

applicability of section 455(b)(3) to Judge Darrow’s participation in this litigation. We ask that the briefs be submitted 

within 30 days of the date of this opinion.