### In the 

# United States Court of A p peals For the Seventh Circuit

____________________ No. 14

- 2223
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.
J ESSE A. S MITH , Defendant

- Appell ant

.

____________________ Appeal from t he United States District Court for the C entral District of Illinois

. No

. 4:08

- cr

- 40067

- 1

— Sara Darrow
, Judge

.

____________________
A RGUED O CTOBER 3, 2014

— D ECIDED O CTOBER 27, 2014

____________________

Before P OSNER , R OVNER , and T INDER , Circuit Judges

. P OSNER , Circuit Judge

. In 2009 the defendant was se ntenced to 24 months in prison, to be followed by 3 years of supervised release, for being a felon in posse s sion of a gun. After being released from prison in 2011 , he violated the terms of his supervised release by failing to submit to ra ndom drug tests, to attend substance

- abuse treatment se ssions, and to report to his probation officer. The district judge sentenced the defendant to five months in prison for2 No. 14

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these violations, and to an additional 30 months of supe rvised release. In 2012 the pr o bation officer, while noting that the defendant had generally done well on supervised r elease, reported that he had twice tested positive for ma ri ju ana . Th e officer suggested, and the judge ordered, modific ations in the terms of supervised release. The modifications consisted of requiring the defendant to serve 45 days of home confinement with electronic monitor ing. L ater, a f ter the defendant had missed seve ral drug tests, the judge o rdered him to e n roll 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, d epressed, and suffering an x iety.”

To summarize a confusin g sequence of events: 1. Smith finishes his five months in prison for violating supe r vised rel e ase and starts his new supervised

- release term of 30 months . 2. During the new period he tests positive for mar ijuana twice and admits to using marijuana reg u lar ly

— for this he is punished with 45 days of home confinement. 3. He tests positive again right after the 45

- day home confin e ment begins, then tests negative ten times in a row and mental health treatment is added to his conditions of supervised r elease.

Tha t isn’t the end of our story . T he following year (2013)
, the probation officer advised the district judge that t he d efendant had committed five traffic offenses , all in one day

. The judge revoked the defe n dant’s supervised release but offered him a choice between a five

- month sentence of i mprisonment followed by two or more years of supervised r elease, or 14 months’ imprisonment with no supervised r ele ase. He chose the first option, and the judge sentenced himNo. 14

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to five months’ imprisonment plus two years of supervised

r e lea se. He was released from prison in October 2013 and in April of this year his probation officer a d vised the district court that the defendant had again violated terms of his s upervised release both by continuing to use marijuana and by viol ating 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 s u pervised release was only 5 to 11 months, the government, at the behest o f the prob a tion service, asked for 15 months. Defense counsel suggested six months with co ntinued supervision or eight months with no further superv ision. 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 i mpressed by his work ethic and w ould be glad to hire him b a ck after he was released from prison. The di s trict judge ( Sara Darrow, not the judge

— Joe Billy McDade

— who had deal t with the defendant prev i ously), describing the case as a difficult one, added that the defen d ant had a bank account and actually paid his bills. So he had in her words “great foundations and necessary found a tions 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 supe rvised release, and y ou 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 supe r vised release was othe rwise exemplary, but for these two positiv e UAs [urinalysis
test s for drugs], I might be wil l ing to give you a little bit more benefit of the doubt ... . I cannot ignore the fact that4 No. 14

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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 an d give you less than the o p tion than [ sic ] you had back then. I think that would denigrate the s e rio usness of these violations, and of the chance you were given. It would promote disrespect for the law, and it would not be an ad equate deterrent from [ sic ] your future conduct.” She se ntenced him to 15 months in prison but no more s u pervised release. The defendant argues that Judge Da r row did not exercise discretion in senten c ing him, but rather was “constrained by a sentence suggested by a different district court judge at a previous revocation proceeding,” and that “this predeterm ination of a sentence deprived [the defendant] of his right to Due Process [;] and the district court’s failure to exercise di scre tion is r e versible error.”

We’ve said that “ a judge can’ t be allowed, when impo sing conditions of probation (or of supervised release), to commit himself to a specified penalty should there be a vi olation or violations. The number and gravity of any viol ations that are committed would be ge r mane to any rati onal judgment on whether to revoke probation and, if it is r evoked, what punishment to impose for the violations. Any signi ficant changes in the defendant’ s situation, such as mental deterioration, would have to be consi d ered as well. We don’ t think a judg e can be permitted to di s able himself from considering such factors by committing himself in a dvance to a specified for any viol a tion of probation, commi tted at any time, under any circu m stances

. ” United States v. Tatum , 760 F.3d 696, 697 (7th Cir . 2014). And by the same t oken we don’t think a successor judge can be permi t ted toNo. 14

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commit himself in advance to imposing the same san c tion imposed by his predecessor

. But that’s not what Judge Darrow did. The fact that the defendant’s supervised r e lease h ad twice been revoked was something the judge was free, maybe required, to co n sider in deciding what sentence to impose for a third set of viol ations. That third set hadn’t been very serious, judging from the re c ommended sentenci ng range of 7 to 11 months. Bu t the judge was entitled to go above it in light of the defen dant’s earlier violations of supervised release. And she went only 4 months above the range. She could have sentenced him to 24 months i n stead 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 a ppropriate treatment for a marijuana habit . (There is no su ggestion that the defendant deals, or has ever dealt, in marij uana or any other ill e gal drug; he’s just a consumer.) The 29 months that he served in prison b e ginning in 2009 did not break him of his habit; wh at 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 co nsumption to a level at which it has no significant beha v ioral or psycholog i cal ill effects

. The fact that he’s impressed his employers suggests that he can fun c tion 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 . Po te ntial employers are unlikely to hold a job open for 15 months,6 No. 14

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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 senten c ing him as she did.

We’re mindful of the def endant’s ser i ous criminal record as a youth, part of an unfortunate personal history that i ncludes 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. R egarding the gun offense, Smith admitted that he had been paid by a cr ack dealer to store the ( loaded ) gun

. He also a dmitted having allowed the crack dealer to use his mother’s house for the sale of crack

. But the defendant’s criminal c areer, 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 mar i juana. She may, however, at least have alluded to a serious co nsequence , or serious consequences, of that use. One possible allusion was to the five traffic of fenses. 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 (ma y be no jail time). The traffic offenses

— three of which at least were s er i ous : driving under the influence, leaving the scene of an a c cident
, 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 di stinct from interrupting it, i t may deter a defendant from u s-No. 14

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ing drugs at times, such as before driving, that create a risk of traffic violations potentially of criminal ma g nitude. Alternatively she may have been alluding to the viol ations that the defendant committed after the third r ev o cation of supervised release

— testing positive for mar i juana twice and violating rules of the halfway house. For she r e ferred to his “conduct on this nearest term” of supervised release. She may have decided that he was an incorrigible supervised

release violator who had to be taught a lesson by a stiff pri son sentence. And that was her prerogative, whet h er 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 hi s behavior.

There are two other issues

— besides whether the judge was (we think she was not) basing the 15

- month prison se ntence that she meted out to the defendant on a b e lief that she could not impose a lesser sanction for his violation of supe rvised r e le ase 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 s upervised release, the Parole Commission determined whet her and when a prisoner would be released before the co mpletion of the term to which he’d been sentenced. In making that determi nation the Commission drew on obse r vations by prison personnel of a prisoner’s behavior in prison and what that b e havior augured for the likelihood that he woul d go straight upon release. Supe r vised release puts the judge in the awkward position of tr y ing to predict the defendant’s post

- release conduct without the benefit of any o b servation of his conduct in prison (since he may be free on bail until he’s sentence d, and in any event will not have begun ser v ing8 No. 14

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his sentence) and any other changes that may have occurred since he was sentenced . For the terms of s u pervised release
are set at senten c ing, though they can be modified later

. The tendency in sentencing, giv en the inabi l ity of the sentencing judge to predict the f u ture, is to err on the side of imposing a scattershot of terms of supervised r e lease

— 20 in this case, some dupl i cative, some that can’t be complied with ( in this case, for example, that the defendan t “shall not associate with any person convicted of a felony”

— how will the d efendant know whether a person he associates with has a fe lony conviction?

— or that he “shall obtain a GED within the first 12 months of supervision ” if he doesn’t have one a lready ; our defe n dant tried, but fell just short of succeeding )

. The most serious problem with the blizzard of supe rvised

- release terms is that it conflates criminality with dis obedience. It’s not as if all terms of supervised release a d dress crimes. It’s not a c rime not to get a GED, or to associate with a felon . It remains a crime in most states to possess mariju ana even in small (i.e., personal

- use) quantities , though a number of states now permit it s use for medical purposes

. P ossession of marijuana is also a federal crime , but federal prosecution for possession of pe r sonal

- use rather than dealer quantities is rare . Legal change and prosecutorial discretion to one side, public tole r ance for marijuana has grown to the point of making simple possession of it a ra dically undere nforced crime . It’s been estimated that 38 pe r cent of American adults admit having tried mar i juana at one time or another, Gallup, “In U.S., 38% Have Tried M ar i juana, Little Changed Since ‘ 80s,” Aug. 2, 2013, www .ga llup.com/poll/163835/ tried

- mar ijuana

- little

- changed

- 80s. aspx (visited Oct. 12, 2013), and the pe r centage that have tried it (whether or not willing to admit having done so) must be higher . The d e-No. 14

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fendant disobeyed the terms of his supervised rele ase r epeatedly, but his current profile is not that of a dangerous criminal, and the utility of his continued impri s onment is difficult to see.

Nevertheless for the reasons explained earlier we would have no choice but to a f firm the district court’s judgme nt , though reluctantly, were it not for a document

— surprisingly mentioned by ne i ther party

— that we have discovered in the record . The document is entitled “Violation Memorandum” (the refe r ence is to the violation of supervised release by the defe n dant) 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 supe rvised release. The document states that the assistant U.S. a ttorney handling the revoc a tion ca se was Sara Darrow. When the report was prepared, she had already been nom i nated to be a district judge, but she was not co n firmed until August 2, 2011, almost six months later. The hearing at which Judge Darrow sentenced the defendant was held on May 29 o f this year. We don’t know the precise extent of her involv e ment in the 2011 revocation of supervised release . The docket sheet reveals that she had appeared before the judge on Ja nuary 7, 2011, for a hearing on the defendant’s first viol a tion of supervise d release . We don’t know how extensive her participation in that hearing was. Even if it was quite li mited, 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 pr esent case in su c cession to Judge McDade on April 1, of this
year, or at the sentencing hearing in May , Judge Darrow had10 No. 14

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any conscious or unconscious memory of having been i nvolved 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

r e cord, we cannot exclude the possibility that the sentence was influenced by a recollection by the judge , perhap s prompted by the defendant’s supervision history prepared by the probation service, that she had participated in the d efendant’s first revocation hear ing , a hearing at which Judge McDade had imposed a relatively mild sentence

— five months in prison plus 14 months of supervised r e lease

— 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 partic i pated as counsel, advisor or material witness concerning the pr oceeding or e x pressed an opinion concerning the merits of the particular case in controversy.” “Pr o ceeding” is defined to include “pretrial, trial, a p pellate 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 se ction 455(b)(3) on appeal even if the defendant failed to i nvoke the stat ute in the district court. The present record is inadequate to enable us to dete rmine whether there was such a violation. We have therefore decided to suspend our decision of the appeal pending r eceipt from the parties of supplemental briefs addressing the applicability of section 455(b)(3) to Judge Darrow’s partic ipation in this litig ation. We ask that the briefs be submitted within 30 days of the date of this opinion.