# United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Argued March 30, 2012

Decided April 13, 2012

Before

WILLIAM J. BAUER, Circuit Judge

RICHARD A. POSNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 11

‐ 3611

UNITED STATES OF AMERICA,

Plaintiff

‐ Appellee,

v.

JEROME STENSON,

Defendant

‐ Appellant. Appeal from the United States District

Court for the Northern District of

Indiana, Sound Bend Division.

No. 3:06

‐ cr

‐ 00066

‐ RLM

‐ 5

Robert L. Miller, Jr.,

Judge

.

O R D E R

Defendant

‐ appellant Jerome Stenson was sentenced to nine months’ imprisonment after

he admitted to violating his supervised release by testing positive for cocaine, failing to

participate in a drug aftercare program, and using alcohol on two occasions. Stenson argues

on appeal that to incarcerate him for violating his supervised release is to punish him for his

addiction to alcohol. The district court’s sentence, Stenson therefore asserts, amounts to a

punishment for his status as an alcoholic in violation of the Eighth Amendment’s prohibition

against cruel and unusual punishment. NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

Fed. R. App. P. 32.1No. 11

‐ 3611 Page 2

We review de novo whether the district court’s sentence violates the Eighth Amendment.

See Robinson v. California

, 370 U.S. 660 (1962); United States v. Black

, 116 F.3d 198, 200

‐ 01 (7th Cir.

1997).

Stenson’s argument is not complex; he simply argues that he was punished for his status

as an alcoholic, thus falling within the protection of the Cruel and Unusual Punishment Clause

as announced in Robinson v. State of California

, 370 U.S. 660 (1962). In Robinson

, the Supreme

Court held that “a state law which imprisons a person thus afflicted [with narcotic addiction]

as a criminal, even though he has never touched any narcotic drug within the State or been

guilty of any irregular behavior there, inflicts a cruel and unusual punishment.” Id

. at 667.

But in this case, we are not dealing with a state law that punishes a person for his status

as an alcoholic; rather, we are faced with punishment for proscribed conduct

. The Supreme

Court acknowledged this distinction in Powell v. Texas

, when it upheld a Texas statute that

criminalized public intoxication: “The State of Texas thus has not sought to punish a mere

status, as California did in Robinson ; nor has it attempted to regulate appellant’s behavior in the

privacy of his own home. Rather, it has imposed upon appellant a criminal sanction for public

behavior which may create substantial health and safety hazards

. . . .” 392 U.S. 514, 532 (1968).

Stenson violated the terms of his supervised release when he failed to attend treatment

programs, used cocaine, and abused alcohol so excessively that it led to his arrest for public

intoxication. This behavior, which Stenson argues is attributable to his alcoholism, is

nonetheless punishable. Under Powell

, punishment for unlawful conduct resulting from

alcoholism is permissible. See id

. And that is the sort of punishment imposed in this case. As

in Powell

, Stenson was not punished for his status as an alcoholic but for his conduct.

Therefore, his claim for cruel and unusual punishment fails.

For the foregoing reasons, we AFFIRM the district court’s judgment.