### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 1354 U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v.

G REGORY J. P HILLIPS Defendant

- Appellant

.

____________________ Appeal from the United States District Court for the Western District of Wisconsin. No

. 03

- cr

- 40

- bbc

- 1

— Barbara B. Crabb , Judge

.

____________________
No. 14

- 3096
U NITED S TATES OF A MERICA , Plaintiff

- Appellee ,

v.

S HAON A RCH , Defendant

- Appellant

.

____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 10

- cr

- 175

- bbc

- 1

— Barbara B. Crabb , Judge

.2 Nos. 14

- 1354 & 14

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____________________
A RGUED J ANUARY 27 , 2015

— D ECIDED J UNE 26, 2015

____________________

Before P OSNER , S YKES , and H AMILTON , Circuit Judges

. S YKES , Circuit Judge

. Gregory Phillips and Shaon Arch violated the condition s of their supervised release and were returned to court for revocation proceedings. The district judge sent them back to prison based in part on the need to

“ hold [the m ] a ccountable for [their] actio ns.” Alt hough the ir cases are otherwise unrelated, they r aise the same issue on appeal, so we have consolidated them for decision

. The defendants argue that because “accountability” is not a factor listed i n the revocation statute , s ee 18 U.S.C. § 3583(e ) , the judge committed reversible procedural error . We reject this argument and affirm.

I. Background
In late 2012 Phillips was released from prison and began a five

- year period of supervis ion in the Western District of Wisconsin

. 1 H e soon violated his rel ease conditions in multiple ways . He u s ed marijuana ; he attempt ed to dilute a urine sample ; and he left the judicial district without his probation officer’s permission. T he probation officer enroll ed him in sweat

- patch testing to more closely monitor his drug

use

. During the next several months, Phillips again traveled

1 He served 1 32 months for possessing cocaine base with intent to distribute. See 21 U.S.C. § 841(a)(1).No s

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outside the district without permission . He also tested positive for drug use three times ( twice for cocaine and once for opiates ) and repeatedly failed to comply with
sweat

- patch testi ng . Finally , he associated with a person engaged in criminal activity. Based on these violations, i n late 2013 t he district court issued a warrant for Phillips’s
arrest . H e evaded apprehension for several months

. When Phillips was finally arrested
, District J udge Barbara Crabb held a revocation hearing , at which Phillips stipulated to the charged violations . T he guidelines recommended reimprisonment for 12 to 18 months

. S ee U.S.S.G. § 7B1.4(a)

. Phillips argued for the bottom of the range , noting that he was steadily employ ed during supervision and was actively involve d in his children’s lives . H e also explained that h e had evad ed arrest because he wanted to be with his wife for the birth of their daughter. J udge Crabb revoked Phillips’s sup ervision a nd returned him to p rison for 24 months, six month s above the top of the range. S he acknowledged that he had “work[ed] hard” to maintain employment while on supervision , but concluded that he “thr[e]w it away,” along with an opportunity to be with his wife and young children , by repeatedly violating the conditions of his supervision. She also noted that Phillips received a “break” when his original prison s entence was

s ubstantially reduced based on subsequent changes to the sentencing guidelines. See 18 U.S .C. § 3582(c)(2) (authorizing the court to modify a sentence of imprisonment when the original sentence was based on a guidelines range that is subsequently lowered by the Sentencing Commission). Summing up, the judge said the reimprisonment term was4 Nos. 14

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meant to “hold you accountable for your actions and protect the community.” In August 2014 Arch was released from prison and began a three

- year term of supervision , also in the Western District of Wisconsin

. 2 Like Phillips, h e soon violated the terms of his supervision

. Because Arch did not have a place to live when he was released from prison , his probation officer took him to a homeless shelter and told him not to leave the facility

. Arch left the shelter that same day and was arrested a few hours later . He was released with instructions to return to the shelter . He did so but soon disappeared again and left Wisconsin . He was arrested in Illinois after assaulting two of his sisters. At the time of his arrest , Arch smelled strongly of alcohol and possessed an open bottle of liquor.
For this conduct Arch was charged with several viol ations of supervised release: disobeying his probation officer’s instructions, committing another crime, leaving the judicial district without permission, and using alcohol. Judge Crabb revoked Arch’s supervision and ordered him reimprisoned for a within

- guidelines term o f 12 months

. The judge e mphasized that Arch had proven “impossible” to supervise and posed a “great danger” to others based on the attack on his sisters. She also n oted that Arch had “very serious mental health problems ” and had “refused to comply with any treatment.” Finally , as in Phillips’s case, the judge cited the need to “hold [ Arch ] accountable for [ his ] actions and pr otect the community.”

2 He serv ed 27 months for possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1).No s

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II. Discussion
The defendants argue that J udge Crabb committed pr ocedural error by relying on the need for “ accountability ,” a factor not enumerated in § 3583(e) , the statute that governs revocation decisions

. We disagree. Section 3583(e) gives the sentencing judge several tools to deal with offenders who violate the terms of their supe rvised release. As relevant here, t he statute p ermits th e court to revoke supervision and order the violator reimprisoned after considering a subset of the factors set forth in § 3553(a), the general sentencing statute. 3 The need to hold the defen dant accountable is not listed.

But a ccountability is an obvious concern whenever an offender has violated the conditions of supervised release

— so ob vious that it may not tell us much about the judge’s rational e for the revocation decision

. Even so , there’s not hing improper about considering it . To the contrary, an offender who violates the conditions of supervised release commits a “breach of trust,” and revocation is primarily aimed at sanctioning that breach. U.S.S.G. ch. 7, pt. A, intr oductory cmt. 3(b) ( emphasizing the “breach of trust” r a3 Specifically, t he statute provides that [t]he court may, after considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) ... revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release , ... if the
court

... finds by a preponderance of the evidence that the defendant violated a condition of super vised release.

18 U .S.C. § 3583(e)(3).6 Nos. 14

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tional e for revocation policy) ; see United States v. Clay , 752 F.3d 1106, 1109 (7th Cir. 2014) ( explaining that a judge’s remarks about “just punishment ” properly “ describe a sanction that conveys the importance of obeying conditions of supervised release” (internal quotation marks omitted) ) ; United States v. Johnson , 640 F.3d 195, 203 (6th Cir. 2011 ); United States v. Young , 634 F.3d 233, 241 (3d Cir. 2011 ) ; United States v. Miqbel , 444 F.3d 1173, 1182 (9th Cir. 2006).

T o th e extent the defendants are arguing that the list of factors in § 3583(e) i s exclusive , they are mistaken . In United States v. Clay , we held t hat a district court may consider the factors listed in subsection (a)(2)(A) of § 3553

— the seriou sness of the offense, respect for the law, and just punis hment

— even tho ugh th o se factors are not mentioned in § 3583(e), as long as the court “relies primarily on th e factors listed in § 3583(e).” 752 F.3d at 1108

– 09; see Young , 634 F.3d at 240

– 41 n.3. Broadly speaking , t he § 3583(e) factors include the nature of the offense
, the defendant’s history and chara cteristics , the need for deterrence and public protection , the defendant’s educational and treatment needs
, and the guidelines and policy statements of the Sentencing Commi ssion. See § 3583(e) (cross

- referencing § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7 )). The judge considered the se factors here , albeit in su mmary fashion. In both cases the judge began by correctly calculat ing and consider ing the reimprisonment range recommended by the guidelines . Opting for a longer term in Phillips ’s case , the judge sp ecifically relied on the need to protect the public as well as Phillips’s poor compliance history on supervision and the fact that his original prison sentence had been substantially reduced , which the judgeNo s

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characterized as a “break” that enabled him to be reunited with his family sooner than expected

. She also acknow ledged his “ hard work ” in holding a job after being released, but emphasized that he “thr[e]w it away ” by repeatedly violating the conditions of his supervision. The judge’s reliance o n a ccountab ility as an added justification for the 24

- month term fits comfortably under the general heading of “deterrence” and wa s not improper.
As for Arch , the judge settled on a within

- guidelines term of re imprisonment of 12 months

. Sh e speci fic ally emph asiz ed th e need to protect the public ( recall that Arch attacked his sisters after absconding from supervision )

. She also noted Arch’s unwillingness to abide by his probation

o ffi cer’s directions, his “very serious mental health pro blems,” and his “refus[ al] t o comply with any treatment.” Here again, a dding accountability to the mix was not i mproper. Finally, Phillips maintains that the judge did not ad equately explain her choice of a 24

- month term of reimpri sonment , six months above the top of the advisor y range

. When imposing an above

- guidelines prison term, a senten cing court need not explain why a within

- range sentence would be insufficient, see United States v. Brown , 732 F.3d 781, 788 (7th Cir. 2013); United States v. Courtland , 642 F.3d 545, 550 (7th Cir. 2011); United States v. B artlett , 567 F.3d 901, 909 (7th Cir. 2009) , but the judge must justify the sentence in light of the statutory sentencing factors and any relevant policy statements in the guidelines , see United States v. Robertson , 648 F.3d 858, 859

– 60 (7th Cir. 2011 )

. T he judge ’s comments here were sparse, but they were sufficient . As we’ve already explained, the judge correctly8 Nos. 14

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noted the re imprisonment range recommended by the guidelines (12 to 18 months) as well as the relevant statutory f actors, including Phillips’s history and characteristics, the need to protect the public , and (broadly speaking) the need for deterrence

. And because the judge chose an impriso nment term fairly close to the top of the suggested range and three years below the statutory maximum, extensive expl anation was not required

. See Gall v. United States , 552 U.S. 38, 50 (2007 ); United States v. J ones , 774 F.3d 399, 405 (7th Cir. 2014)

. A FFIRMED

.Nos. 14

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P OSNER , Circuit Judge , concurring and dissenting . I agree with the majority’s decision in Arch’s appeal, but I would reverse Phillips’s sentence, and will limit my discussion a ccordingly. The errors in the majority opinion that I will be discussing with re ference only to Phillips spill over into its analysis of Arch, but in the case of Arch they are harmless; in the case of Phillips they are not. Phillips’s case is another illustration of the difficulty, di scussed in several of our recent cases, see United States v. Kappes , 782 F.3d 828 (7th Cir. 2015) ; United States v. McMill ian , 777 F.3d 444 (7th Cir. 2015); United States v. Thompson , 777 F.3d 368 (7th Cir. 2015); United States v. Bryant , 754 F.3d 443 (7th Cir. 2014) ; United States v. Siegel , 753 F.3d 705 (7th Cir. 2014)

— none cited in the majority opinion in this case

— that a number of federal di s trict judges in this circuit are having with supervised release. The district court’s ha n dling of the case was inconsistent with these opinions , and so is the a ffir mance of Phillips’ s sentence

. Phillips was convicted in 2003 of conspir a cy to distribute

co caine and ultimately sentenced to 132 months in prison. ( That was a resentence

— his original sentence had been a staggering 262 months.) He served a total of 118 mont hs of his 132

- month sentence. Soon after being released in 2012 , he began violating several conditions of supervised release that the sentencing judge had imposed

— using marijuana, a ttempting to dilute a urine sample in order to conceal his use of illegal d rugs from his probation officer , and leaving the judicial district without the officer’s permission. Out of co ncern for the defendant’s contin ued use of illegal drugs , the prob a tion officer ordered him to wear a “sweat patch

. ” An altern a tive to urine testi ng for illegal drug use, a sweat patch10 No s

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is a small absorbent pad attached to one’s arm or back or elsewhere on the body by an adhesive strip . It absorbs small quantities of sweat, which if the person wearing the patch is consuming cocaine or heroin will con tain molecules that r eveal the drug’s presence in the pe r son’s body. The patch is removed every week and sent to a labor a tory to test for the presence of such mol e cules

. After being “patched,” the defendant within a period of months twice tested positive f or illegal drugs, r e moved the patches other than for the weekly testing (he claimed wit hout contradiction that they irritated his skin), again traveled outside the judicial district without permission, and assoc iated with a person engaged in criminal activ ity. Eventua lly

— roughly a year after the defendant’s release from pri son

— the district court issued a warrant for his arrest for vi olation of supervised release, and he was arrested after elu ding arrest for several more months. Despite his viol a tions he had maintained steady, gainful employment during his s upervised release, had maintained a normal family life, and claimed that he had evaded arrest just so that he could be with his wife for the birth of their daughter. These claims
were not contr o verted.
The judge ordered that his supervised release be revoked ( which was mandatory , though only because one of his vi olations of s u pervised release was possession of a controlled substance , 18 U.S.C. § 3583( g)(1) ) , and that he be imprisoned as punishment for his v iolations. The guidelines range appl icable to his violations was 12 to 18 months, but the j udge sentenced him to 24 months (to be followed by 36 months of the same conditions of supervised release that he had beenNos. 14

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originally sentenced to) , even though the government had recommended a within

- guidelines se n tence.
The prison sentence imposed by the district judge was unduly severe (the reimposition of the conditions of supe rvised release for 36 months is not challenged) . So far as a ppears, d e spite his drug add iction, unauthorized trips outside the jud i cial district, and ass ociating with a criminal, he le d a normal life, with a wife and children and steady, gainful, lawful employment. He ha d life insurance, health insu r ance , and even dental i n surance. He had bee n able to afford to buy his kids fishing poles and take them fishing. To stick him in prison for two years is bound to e n danger both the stability of his family life and his ability to maintain lawful emplo yment . His violations of supervised release were m inor from the standpoint of protecting the community . Many drug a ddicts live quite normal lives; he seems to be one of them. There was nothing sinister about his unauthorized trips ou tside the Western District of Wisconsin

— they were to Minn esota, where his mother lives

— or his association with a cri minal , a woman whom he drove to Minnesota , where she a pplied for government assistance without being entitled to it. The defendant claimed not to know that the woman was e ngaged in welfare fraud , and the governmen t does not co ntend that he did know

. To associate with a person who is a criminal but whom one does not know to be a criminal can hardly be thought a violation of supervised release. See United States v. Thompson , supra , 777 F.3d at 377, 380; United States v. Phillips, 704 F.3d 754, 767

– 68 (9th Cir. 2012 ). And apparently the sweat patches that the defendant removed from his skin really were very irritating, for they left l e sions on his back.12 No s

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The most serious error committed by the district judge

— a reversibl e error overlooked in the majority opinion

— is the judge’s failure to apply the statutory senten c ing factors in 18 U.S.C. § 3553(a) , specifically those in subsection (2) (“the need for the sentence imposed”)

. Our recent cases emph asize that application of t he factors is a requirement in dete rmining what conditions of supervised release to impose, not

an o p tion . See United States v. Kappes , supra , 782 F.3d at 845 ; United States v. Br y ant , supra, 7 5 4 F.3d at 444

– 45 ; United States v. Siegel , supra , 753 F.3d at 707

. T he Justice Department now acknowledges this by requesting remands in appeals in which the r e quirement is overlooked. See, e.g. , United States v. Miller , 782 F.3d 793, 803 ( 7th Cir. 2015). (None of these ca ses is cited in the majority opinion in the p resent case.) Igno ring the requirement is a reversible error. Application of the sentencing factors is likewise required in deciding on the punishment for viola t ing a condition of supervised release, United States v. Boul t inghouse , 784 F.3d 1163, 1177

– 79 ( 7th Cir. 2015)

— for the punishment , just like the imposition of cond itions of supervised release, is a sentence , and unless a se ntence is spec i fied by Congress, the sentencing judge must before imposing it consider its conformity to the section 3553(a) fact ors. That was not done in this case, and the m ajority opinion allows the error, though it is a reversible error, to pass. After hearing from the lawyers and the defendant, the district judge addressed the defendant as follows : “You did work hard. The fact that you could work that long a t the fast food place and then get a job at Ashley Furniture, I mean you really had things going for you. You were set. I mean there are all kinds of people I know that haven’t had that kind of success after getting out of pr ison. And then to throwNos. 14

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it away. ... I’m g o ing to impose a sentence slightly

— well, quite a bit above the guideline s range. The intent of this se ntence it [she must have meant ‘is’] to hold you accountable for your actions and protect the community.” And that ’s it, so far as compl i ance with the requirement that a sentencing judge justify the sentence imposed. To repeat, the judge did
not cite 18 U.S.C. § 3 5 53(a) or mention the sentencing factors listed in it, unless “protect the community” can be consi dered on e

. C f. § 3553(a)(2)(C) . Y et the defendant does not a ppear to be a threat to the community. And the judge gave no

reason at all for imposing an above

- guideline s sentence, which as I noted the government had not requested

. The judge’s reference to “ac c ountab ility” is difficult to understand. A defendant cannot be convicted, let alone se ntenced, for conduct for which he is not accountable. That is a precondition of punishment rather than a prescription for severity. I am distressed, finally, by the district ju dge’s appearing to base the harsh sentence on the fact that the defendant “r eally had things going for” him, unlike so many ex

- cons. The implication is that he is being punished extra

- severely for being able to do , and doing, what so many former co n victs, especially those who like him have served long prison se ntence s , are un able to do after being released

— maintain an intact family and obtain decent employment (which of course go hand in hand). The sentence jeopardizes both of the defendant’s achiev e ments. As a result of spending two more years in prison, he is likely to lose his job and opport unities for future gainful employment; he may lose his family.14 No s

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The judge failed to articulate a rational basis for impo sing an above

- guideline s sentence. The sentence she imposed should be r e versed.