In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 15-1425 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v.

MICHAEL DILL

Defendant-Appellant. 

____________________ 

Appeal from the United States District Court for the 

Eastern District of Wisconsin. 

No. 13-CR-11-JPS — J. P. Stadtmueller, Judge. 

____________________ 

ARGUED JULY 8, 2015 — DECIDED AUGUST 25, 2015 

____________________ 

Before POSNER, SYKES, and HAMILTON, Circuit Judges. 

HAMILTON, Circuit Judge. Michael Dill was placed on supervised release after serving 10 years in federal prison for 

bank robbery. Twice now he has been sent back to prison for 

committing multiple violations of conditions of release, this 

latest time for 14 months. In this appeal from the second 

revocation of supervised release, Dill contends that the district judge erred by having decided irrevocably before the 

revocation hearing that he would impose a new term of at 
2 No. 15-1425 

least 12 months in prison—the term Dill received after the 

first revocation—without first considering the applicable 

sentencing guidelines, his arguments in mitigation, or the 

pertinent factors under 18 U.S.C. § 3583(e)(3) and § 3553(a). 

We affirm. The judge had obviously prepared for the decision and had some strong views at the beginning of the hearing. We do not think, however, that the judge’s preparation 

and thought crossed the line into an irrevocable commitment 

such that his mind was closed to what happened in the hearing. 

I. Factual and Procedural Background

From December 2000 through March 2001, Dill and a 

confederate robbed several Chicago-area banks of over 

$21,000. Dill was caught and pled guilty in federal court to 

two counts of bank robbery under 18 U.S.C. § 2113(a). He 

was sentenced in the Northern District of Illinois to ten years 

in prison followed by a three-year term of supervised release. 

Dill was released from prison in April 2012, and his supervision was transferred to the Eastern District of 

Wisconsin. Within a year, he had relapsed on drugs and violated four conditions of his supervised release: He missed 

drug tests and counseling appointments, tested positive for 

morphine and marijuana, traveled outside the judicial district without permission, and failed to comply with locationmonitoring requirements. 

The district court convened a revocation hearing in June 

2013 but did not revoke Dill’s supervised release, instead 

continuing the proceedings to give Dill “another chance” to 

comply with his conditions of supervised release. But the 
No. 15-1425 3

court also warned Dill that any future violation would result 

in a 15-month term of reimprisonment. 

One month later Dill again tested positive, this time for 

opiates, and he admitted frequent use of heroin. The district 

court reconvened the revocation hearing and calculated a 

reimprisonment range of 8 to 14 months based on Dill’s 

Grade C violations and Category VI criminal history. See 

U.S.S.G. § 7B1.4(a). Dill explained that he had started using 

drugs again after his release from prison as a way of coping 

with the deaths of his daughter and mother during his incarceration. But he emphasized his positive work history, stable 

residence, and ongoing support from his girlfriend, and he 

asked the court to impose a reimprisonment term of time 

served (36 days) plus a requirement of psychological counseling. The court, though, expressed skepticism that counseling—which had not worked before—would sufficiently deter Dill. Despite the earlier threat of a 15-month term, the 

court imposed a 12-month term of reimprisonment, along 

with an additional 18 months of supervised release. Dill did 

not appeal that decision. 

Dill completed the new prison term. Just seven months 

after his release, Dill was before the district court again, having accrued five more violations of his supervised release. 

He had: missed eight random drug tests and two counseling 

sessions; tested positive for morphine, codeine, and cocaine; 

committed two traffic violations; failed to notify his probation officer after contact with law enforcement; and failed to 

make regular restitution payments. Dill’s attorney submitted 

a letter asking the court to continue Dill’s supervision, again 

emphasizing his positive employment history and stable 

romantic relationship and describing Dill’s efforts at combat-
4 No. 15-1425 

ting his addiction. The court rejected Dill’s request for continued supervision. The district judge acknowledged that 

“addiction is perhaps central to the problem here” but added: 

most offenders, including those with addiction, 

at some point, particularly after having spent 

the length of time that [Dill] did in prison, find 

it in their heart and in their outlook to put this 

aspect of their life behind [them], and take advantage of all of the programming and counseling that’s available. 

When offenders choose not to conform their conduct to the 

law, the court continued, “there is only one alternative, and 

that is—because we, as a society, cannot have individuals in 

our midst who are either in a workplace, or in a home environment, or worse yet behind the wheel [of] a vehicle, high 

on drugs.” So, the court concluded, there was “no other alternative for Michael Dill anymore, other than to send [him] 

back to prison.” 

The district court next turned to the length of that term of 

reimprisonment. Though the court recognized that the policy statements in Chapter 7 of the Sentencing Guidelines 

called for 8 to 14 months, the court explained that Dill’s term 

was “not going to be a year, and it’s not going to be two 

years,” but instead would “probably” be “something inbetween” because, the court reasoned, “when you violate the 

conditions of supervised release, the penalties get ratcheted 

up.” The court thus rejected the government’s recommendation for 8 to 12 months and the defendant’s request for 6 

months, emphasizing that Dill’s drug use made him a danger to society. And, the court repeated, its “options” were to 
No. 15-1425 5

impose a term “of not less than a year, and no more than two 

years.” The court concluded that a 14-month term of reimprisonment was the “only fair, just, and reasonable sentence.” 

After the district court imposed a prison term of that 

length, the prosecutor asked the court to clarify whether it 

had considered the mitigating arguments from defense 

counsel’s letter and whether the court understood that the 

term could be less than 12 months, given the advisory range 

of 8 to 14 months. The court responded that the Sentencing 

Guidelines “were never mandatory in supervised release 

revocation proceedings.” The judge added: 

I’m not going to reimpose a lower or same sentence that didn’t work the first time. In other 

words, the consequences are greater. And so 

they weren’t as great as perhaps they could 

have been, because I could have imposed a 

sentence of 24 months. In fact, some might 

suggest that that should have been the sentence. 

The judge next turned to Dill’s arguments in mitigation. 

Though he had considered those arguments, the judge said, 

he was not persuaded to impose a shorter prison term: 

[I]t was very clear at the outset, we’ve been 

through this once with Mr. Dill. It didn’t work, 

and there are consequences. As I stated earlier, 

if this were Mr. Dill’s first revocation proceeding, it might be different. But it wasn’t. So as 

they say, it is what it is. And we can’t turn back 

the hands of mother time, nor put the genie 
6 No. 15-1425 

back in the bottle. And Mr. Dill has no one to 

look to other than himself. And for an individual with the significant criminal history and 

the significant prior terms of imprisonment, including a 12 month sentence on supervised release, it ill behooves either [him] or anyone on 

his behalf to suggest that we set these violations aside and put him back on the street. That 

would be a total dereliction of any judicial officer’s responsibilities in enforcing and ensuring 

an appropriate, fair, just, and reasonable disposition.

Dill did not object to any aspect of the revocation proceeding. 

II. Analysis

Few duties of a United States District Judge are as challenging or involve so much discretion as sentencing. At least 

where statutory mandatory minimum sentences do not dictate a decision, the Sentencing Guidelines and the key statutes on sentencing direct the judge to try to balance conflicting goals of sentencing. See 18 U.S.C. §§ 3553(a) & 3583(e)(3). 

The final decision cannot be reduced to a formula. The judge 

must exercise judgment about the individual case that is often not fully explainable in terms of deductive logic. 

Dill’s appeal here is aimed at one of the inherent tensions 

in sentencing. The judge must prepare for a sentencing decision by reviewing the facts of the offense or violation and the 

history and characteristics of the offender and by considering the available choices. Rarely does a judge walk into a 

sentencing hearing without a fairly clear idea of an appro-
No. 15-1425 7

priate sentence. At the same time, the sentencing hearing itself is an essential step. Judges must keep their minds open 

to new facts, new arguments, and new choices. 

If the judge communicates those preliminary thoughts 

about an appropriate sentence to counsel near the beginning 

of the hearing, it can often help counsel and the defendant 

know what the judge is most concerned about and address 

their arguments to those points. On the other hand, if the 

judge is not careful with the language used, then counsel 

and the parties and a reviewing court can get the impression 

that the judge’s mind was already made up no matter what 

might happen in the sentencing hearing. 

Dill’s sole contention on appeal is that the district court 

failed to maintain this balance in his case by refusing improperly to consider a second reimprisonment term below 

12 months, the term he had received after his first revocation. Dill points to the court’s statement at the beginning of 

the hearing—that the court was considering a term between 

12 and 24 months—as evidence that a term of at least 12 

months had been decided in advance. 

As Dill points out, we have cautioned district judges not 

to predetermine the appropriate punishment before convening a revocation hearing. See United States v. Smith, 770 F.3d 

653, 655 (7th Cir. 2014); United States v. Tatum, 760 F.3d 696, 

697 (7th Cir. 2014). District judges must approach revocation 

and sentencing hearings with an open mind and consider 

the evidence and arguments presented before imposing punishment. See United States v. Pulley, 601 F.3d 660, 665 (7th Cir. 

2010); United States v. Pless, 982 F.2d 1118, 1129 (7th Cir. 

1992). 
8 No. 15-1425 

At the same time, a judge who begins the hearing without any preliminary idea of appropriate sanctions is probably not prepared. Having such an idea does not disable the 

judge from making the sentencing decision. See Pulley, 601 

F.3d at 665; Pless, 982 F.2d at 1129–30; see also Fleenor v. 

Farley, 47 F. Supp. 2d 1021, 1052–53 (S.D. Ind. 1998) (sentencing judge’s statement to counsel at start of hearing that he 

was leaning toward imposing death sentence meant that 

judge was prepared, not that he had made up his mind unalterably), aff’d, 171 F.3d 1096 (7th Cir. 1999). 

Taken in isolation, some of the district judge’s statements 

here could be read to suggest that he did not come into the 

hearing with an open mind, including his statement that the 

court’s “options” for Dill’s punishment were a term “of not 

less than a year, and no more than two years.” The judge also used some language that could be read as minimizing the 

discretion he actually had, saying “there is no other way,” 

referring to the sentence he was “obliged” to impose, and 

saying that the sentence imposed was “the only fair, just, 

and reasonable sentence.” Such language of necessity is not 

literally true but should not be understood literally. A judge 

pronouncing sentence often explains to a defendant how the 

defendant has earned the sentence by his own choices, 

which have forced the judge to impose a just punishment. 

Such language does not mean that the judge has not given 

thoughtful consideration to the decision.1

 1 In some instances a judge’s language of obligation or necessity may 

be best understood as an effort by a judge who must make a difficult decision to explain it in ways that minimize the discretion and thus the 

judge’s personal responsibility for the final decision, or perhaps to tie the 

final decision to a reasonable philosophy or rationale. If the judge goes 
No. 15-1425 9

The final decision must be made and announced in the 

hearing itself. Explanations are more often extemporaneous 

than carefully scripted. Explanations seek to weigh what 

cannot be measured and to balance competing goals as difficult as squaring a circle. For all these reasons, we must “be 

careful when a judge has made a spontaneous sentencing 

statement not to impose an unrealistically literal interpretation on his words.” Tatum, 760 F.3d at 697. 

From the record as a whole, it is evident that the judge 

gave careful and individual consideration to Dill’s case. He 

did not “disable himself” from considering a lower term before hearing all of the relevant information. See id.; Smith, 

770 F.3d at 655 (reasoning that district court had not committed itself in advance to punishment announced by predecessor but instead had properly considered previous revocation 

in determining appropriate term of reimprisonment); United 

States v. Keatings, 787 F.3d 1197, 1204 (8th Cir. 2015) (concluding that district court had considered § 3553(a) factors and 

did not confine itself to earlier threat of 10-year prison term). 

The district judge announced at the start of the hearing 

that he would “probably” impose a term of reimprisonment 

between one and two years in light of the previous revocation. See Smith, 770 F.3d at 655 (explaining that fact of previ-

 

too far in denying responsibility for the decision, to the point of signaling 

the judge does not understand his or her power, an appellate court may 

reverse because the sentence was based on a legal misunderstanding. 

This occurred (very rarely) when the Sentencing Guidelines were mandatory, where defendants sought downward departures and judges indicated they did not understand their power to depart. See United States 

v. Poff, 926 F.2d 588, 591 (7th Cir. 1991) (en banc) (discussing issue but 

finding no error). There was no such misunderstanding here. 
10 No. 15-1425 

ous revocations was “something the judge was free, maybe 

required, to consider” in revocation proceedings). Before 

announcing the 14-month term, the judge acknowledged the 

Chapter 7 policy statements and assessed Dill’s new violations and the danger he posed to society. See United States v. 

Phillips, 791 F.3d 698, 702 (7th Cir. 2015) (explaining that district court must justify term of reimprisonment “in light of 

the statutory sentencing factors and any relevant policy 

statements in the guidelines”); Tatum, 760 F.3d at 697 (instructing sentencing courts to consider “number and gravity” of supervised-release violations before determining 

whether to revoke supervision). 

The general principle that the judge applied here, that he 

would not impose a lighter sentence for a second set of comparable violations, is both understandable and reasonable. 

Yet the judge clearly made an individualized decision, taking into account Dill’s conduct both recent and remote, and 

his history and characteristics, including his long-term drug 

addiction. The judge wisely chose not to impose a new 

round of supervised release after this latest prison term. 

Moreover, the judge had shown his flexibility by previously imposing a 12-month term of reimprisonment despite 

having warned Dill that another violation would produce a 

15-month term. The judge was not so committed to a sentence of over 12 months, regardless of Dill’s arguments at the 

hearing, that the judge could not preside fairly over the revocation. 

AFFIRMED.