In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 14-1354

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

GREGORY J. PHILLIPS

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

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

SHAON ARCH,

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 & 14-3096

____________________

ARGUED JANUARY 27, 2015 — DECIDED JUNE 26, 2015

____________________

Before POSNER, SYKES, and HAMILTON, Circuit Judges.

SYKES, Circuit Judge. Gregory Phillips and Shaon Arch 

violated the conditions 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 [them] accountable for [their] actions.” Although their

cases are otherwise unrelated, they raise the same issue on 

appeal, so we have consolidated them for decision. The

defendants argue that because “accountability” is not a 

factor listed in the revocation statute, see 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 supervision in the Western District of 

Wisconsin.1 He soon violated his release conditions in 

multiple ways. He used marijuana; he attempted to dilute a 

urine sample; and he left the judicial district without his 

probation officer’s permission. The probation officer enrolled

him in sweat-patch testing to more closely monitor his drug 

use. During the next several months, Phillips again traveled 

1 He served 132 months for possessing cocaine base with intent to 

distribute. See 21 U.S.C. § 841(a)(1).

 
Nos. 14-1354 & 14-3096 3

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 testing. Finally, he associated with a person 

engaged in criminal activity. Based on these violations, in 

late 2013 the district court issued a warrant for Phillips’s

arrest. He evaded apprehension for several months. 

When Phillips was finally arrested, District Judge Barbara 

Crabb held a revocation hearing, at which Phillips stipulated 

to the charged violations. The guidelines recommended

reimprisonment for 12 to 18 months. See U.S.S.G. § 7B1.4(a).

Phillips argued for the bottom of the range, noting that he 

was steadily employed during supervision and was actively 

involved in his children’s lives. He also explained that he 

had evaded arrest because he wanted to be with his wife for 

the birth of their daughter. 

Judge Crabb revoked Phillips’s supervision and returned 

him to prison for 24 months, six months above the top of the 

range. She 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 sentence was 

substantially 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 was 
4 Nos. 14-1354 & 14-3096

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, he 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 violations 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 of 12 months. The judge emphasized that Arch had proven “impossible” to supervise

and posed a “great danger” to others based on the attack on 

his sisters. She also noted 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 protect the community.”

2 He served 27 months for possessing a firearm as a felon. See 18 U.S.C. 

§ 922(g)(1).

 
Nos. 14-1354 & 14-3096 5

II. Discussion

The defendants argue that Judge Crabb committed procedural 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 supervised release. As relevant here, the statute permits the 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 defendant accountable is not listed.

But accountability is an obvious concern whenever an 

offender has violated the conditions of supervised release—

so obvious that it may not tell us much about the judge’s 

rationale for the revocation decision. Even so, there’s nothing 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, introductory cmt. 3(b) (emphasizing the “breach of trust” ra3 Specifically, the 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 supervised release.

18 U.S.C. § 3583(e)(3).

 
6 Nos. 14-1354 & 14-3096

tionale 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).

To the extent the defendants are arguing that the list of 

factors in § 3583(e) is exclusive, they are mistaken. In United 

States v. Clay, we held that a district court may consider the 

factors listed in subsection (a)(2)(A) of § 3553—the seriousness of the offense, respect for the law, and just punishment—even though those factors are not mentioned in 

§ 3583(e), as long as the court “relies primarily on the factors 

listed in § 3583(e).” 752 F.3d at 1108–09; see Young, 634 F.3d at 

240–41 n.3. Broadly speaking, the § 3583(e) factors include 

the nature of the offense, the defendant’s history and characteristics, the need for deterrence and public protection, the 

defendant’s educational and treatment needs, and the 

guidelines and policy statements of the Sentencing Commission. 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 these factors here, albeit in summary fashion. In both cases the judge began by correctly 

calculating and considering the reimprisonment range

recommended by the guidelines. Opting for a longer term in 

Phillips’s case, the judge specifically 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 judge 
Nos. 14-1354 & 14-3096 7

characterized as a “break” that enabled him to be reunited 

with his family sooner than expected. She also acknowledged 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 on accountability as an added justification for the 

24-month term fits comfortably under the general heading of 

“deterrence” and was not improper.

As for Arch, the judge settled on a within-guidelines term 

of reimprisonment of 12 months. She specifically emphasized the 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 

officer’s directions, his “very serious mental health problems,” and his “refus[al] to comply with any treatment.” 

Here again, adding accountability to the mix was not improper.

Finally, Phillips maintains that the judge did not adequately explain her choice of a 24-month term of reimprisonment, six months above the top of the advisory range. 

When imposing an above-guidelines prison term, a sentencing 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. Bartlett, 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).

The judge’s comments here were sparse, but they were 

sufficient. As we’ve already explained, the judge correctly 
8 Nos. 14-1354 & 14-3096

noted the reimprisonment range recommended by the 

guidelines (12 to 18 months) as well as the relevant statutory 

factors, 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 imprisonment term fairly close to the top of the suggested range and 

three years below the statutory maximum, extensive explanation was not required. See Gall v. United States, 552 U.S. 38, 

50 (2007); United States v. Jones, 774 F.3d 399, 405 (7th Cir. 

2014). 

AFFIRMED.
Nos. 14-1354 & 14-3096 9

POSNER, 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 accordingly. The errors in the majority opinion that I will be 

discussing with reference 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, discussed in several of our recent cases, see United States v. 

Kappes, 782 F.3d 828 (7th Cir. 2015); United States v. McMillian, 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 district judges in this circuit are having 

with supervised release. The district court’s handling of the 

case was inconsistent with these opinions, and so is the affirmance of Phillips’s sentence.

Phillips was convicted in 2003 of conspiracy to distribute 

cocaine 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 months 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, attempting to dilute a urine sample in order to conceal his use 

of illegal drugs from his probation officer, and leaving the 

judicial district without the officer’s permission. Out of concern for the defendant’s continued use of illegal drugs, the 

probation officer ordered him to wear a “sweat patch.” An 

alternative to urine testing for illegal drug use, a sweat patch 
10 Nos. 14-1354 & 14-3096

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 contain molecules that reveal the drug’s presence in the person’s body. The patch is 

removed every week and sent to a laboratory to test for the 

presence of such molecules.

After being “patched,” the defendant within a period of 

months twice tested positive for illegal drugs, removed the 

patches other than for the weekly testing (he claimed without contradiction that they irritated his skin), again traveled 

outside the judicial district without permission, and associated with a person engaged in criminal activity. Eventually—roughly a year after the defendant’s release from prison—the district court issued a warrant for his arrest for violation of supervised release, and he was arrested after eluding arrest for several more months. Despite his violations he 

had maintained steady, gainful employment during his supervised 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 controverted.

The judge ordered that his supervised release be revoked

(which was mandatory, though only because one of his violations of supervised release was possession of a controlled 

substance, 18 U.S.C. § 3583(g)(1)), and that he be imprisoned 

as punishment for his violations. The guidelines range applicable to his violations was 12 to 18 months, but the judge 

sentenced him to 24 months (to be followed by 36 months of 

the same conditions of supervised release that he had been 
Nos. 14-1354 & 14-3096 11

originally sentenced to), even though the government had 

recommended a within-guidelines sentence.

The prison sentence imposed by the district judge was

unduly severe (the reimposition of the conditions of supervised release for 36 months is not challenged). So far as appears, despite his drug addiction, unauthorized trips outside 

the judicial district, and associating with a criminal, he led a 

normal life, with a wife and children and steady, gainful, 

lawful employment. He had life insurance, health insurance,

and even dental insurance. He had been able to afford to buy 

his kids fishing poles and take them fishing. To stick him in 

prison for two years is bound to endanger both the stability 

of his family life and his ability to maintain lawful employment. His violations of supervised release were minor from 

the standpoint of protecting the community. Many drug addicts live quite normal lives; he seems to be one of them. 

There was nothing sinister about his unauthorized trips outside the Western District of Wisconsin—they were to Minnesota, where his mother lives—or his association with a criminal, a woman whom he drove to Minnesota, where she applied for government assistance without being entitled to it. 

The defendant claimed not to know that the woman was engaged in welfare fraud, and the government does not contend 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 lesions 

on his back.
12 Nos. 14-1354 & 14-3096

The most serious error committed by the district judge—

a reversible error overlooked in the majority opinion—is the 

judge’s failure to apply the statutory sentencing factors in 18 

U.S.C. § 3553(a), specifically those in subsection (2) (“the 

need for the sentence imposed”). Our recent cases emphasize that application of the factors is a requirement in determining what conditions of supervised release to impose, not 

an option. See United States v. Kappes, supra, 782 F.3d at 845; 

United States v. Bryant, supra, 754 F.3d at 444–45; United States 

v. Siegel, supra, 753 F.3d at 707. The Justice Department now 

acknowledges this by requesting remands in appeals in 

which the requirement is overlooked. See, e.g., United States 

v. Miller, 782 F.3d 793, 803 (7th Cir. 2015). (None of these cases is cited in the majority opinion in the present case.) Ignoring the requirement is a reversible error. Application of the 

sentencing factors is likewise required in deciding on the 

punishment for violating a condition of supervised release, 

United States v. Boultinghouse, 784 F.3d 1163, 1177–79 (7th Cir. 

2015)—for the punishment, just like the imposition of conditions of supervised release, is a sentence, and unless a sentence is specified by Congress, the sentencing judge must 

before imposing it consider its conformity to the section 

3553(a) factors. That was not done in this case, and the majority 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 at 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 prison. And then to throw 
Nos. 14-1354 & 14-3096 13

it away. ... I’m going to impose a sentence slightly—well, 

quite a bit above the guidelines range. The intent of this sentence it [she must have meant ‘is’] to hold you accountable 

for your actions and protect the community.” And that’s it, 

so far as compliance with the requirement that a sentencing 

judge justify the sentence imposed. To repeat, the judge did 

not cite 18 U.S.C. § 3553(a) or mention the sentencing factors 

listed in it, unless “protect the community” can be considered one. Cf. § 3553(a)(2)(C). Yet the defendant does not appear to be a threat to the community. And the judge gave no

reason at all for imposing an above-guidelines sentence, 

which as I noted the government had not requested.

The judge’s reference to “accountability” is difficult to 

understand. A defendant cannot be convicted, let alone sentenced, 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 judge’s appearing 

to base the harsh sentence on the fact that the defendant “really 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 convicts, 

especially those who like him have served long prison sentences, are unable 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 achievements. As a result of spending two 

more years in prison, he is likely to lose his job and opportunities for future gainful employment; he may lose his family.
14 Nos. 14-1354 & 14-3096

The judge failed to articulate a rational basis for imposing an above-guidelines sentence. The sentence she imposed 

should be reversed.