### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 18

‐ 3675

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

S HAWN K ARST

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Eastern District of Wisconsin.

No. 17

‐ CR

‐ 215

— William C. Griesbach

, Judge

.

____________________

A RGUED N OVEMBER 4, 2019

— D ECIDED J ANUARY 27, 2020

____________________

Before W OOD

, Chief Judge

, B AUER and B RENNAN

, Circuit

Judges

.

B RENNAN

, Circuit Judge

. Leaving an untouched pizza on

the table, Shawn Karst exited a restaurant with two men who

wore Mesticas motorcycle club vests. The three drove off on

their bikes, and a few minutes later one of the two men with

Karst pulled the trigger in a drive

‐ by shooting. At the time,

Karst was on supervised release.2 No. 18

‐ 3675

Authorities petitioned for Karst’s revocation, but the re

‐

quest traveled a bumpy road. The magistrate judge vacated

the petition after finding the evidence presented did not show

probable cause to believe Karst violated the release condi

‐

tions. The district judge quickly reinstated the proceedings.

He later held a final hearing at which release was revoked,

and Karst received 30 more months of imprisonment.

On appeal Karst challenges the lack of a preliminary hear

‐ ing on the reinstated revocation petition, whether the district

court provided him with adequate notice of his allegedly vio

‐

lative conduct, and the district court’s failure to consult the

sentencing guidelines when deciding his revocation term.

I.

In 2011, Karst pleaded guilty in the U.S. District Court for

the Northern District of Indiana to the manufacture and pos

‐

session of marijuana plants with the intent to distribute. He

was sentenced to 60 months of imprisonment and four years

of supervised release. His supervised release was later trans

‐

ferred to the Eastern District of Wisconsin. Two conditions of

that release pertain here: Karst was required to (1) “not com

‐

mit any further federal, state or local law violations” and (2)

not associate with “persons known by him to be engaged, or

planning to be engaged, in criminal activity.”

In 2018, Karst was involved in a shooting in Appleton,

Wisconsin, although the parties dispute to what degree.

Minutes before the shooting, surveillance video shows the

triggerman, Karst, and a third individual talking inside a

pizza parlor. They looked out the windows as the victim

walked past and entered his pickup truck. The triggerman

handed his Mesticas motorcycle club vest to Karst. Then allNo. 18

‐ 3675 3

three men left the restaurant one after another, leaving an un

‐

eaten pizza behind. Outside the restaurant Karst returned the

vest to the triggerman, and all three drove o ff on their motor

‐ cycles.

The Appleton Police Department gathered tra ffi c camera

footage of the intersection where the shooting occurred. That

video shows the three individuals driving their motorcycles

up next to the victim’s pickup. The triggerman fi res several

rounds into the truck, with Karst driving two to three seconds

behind. All three motorcyclists then proceed through a red

light and accelerate after the truck. 1

Based on these events, the U.S. probation department,

with the government’s concurrence, petitioned for a warrant

alleging Karst violated the conditions of supervision de

‐

scribed above. The warrant issued, Karst was arrested, and

three court hearings followed.

In the fi rst, a preliminary hearing under Federal Rule of

Criminal Procedure 32.1(a), Magistrate Judge James Sickel

sought to “determine whether there [was] probable cause to

believe that a violation occurred.” The government called

only Appleton police o ffi cer Michael Medina, who testi fi ed to

the video evidence of Karst’s involvement in the shooting.

Karst objected to Medina’s testimony under the best evidence

rule, which the magistrate judge sustained. Absent further ev

‐

idence, the magistrate judge found the government had failed

to show probable cause that the defendant violated the release

1 The record reflects the victim’s truck was damaged, but none of the

rounds struck the victim.4 No. 18

‐ 3675

conditions, so the magistrate judge vacated the petition to re

‐

voke supervised release and released Karst.

The next day, after the probation department reported the

outcome of the preliminary hearing, Chief U.S. District Judge

William Griesbach sua sponte held a second hearing. The dis

‐

trict judge concluded that the magistrate judge’s evidentiary

ruling was incorrect. After reviewing the magistrate judge’s

authority under 28 U.S.C. § 636, as well as the supervised re

‐

lease statute, 18 U.S.C. § 3583, the district judge concluded the

magistrate judge was without “the authority to dismiss a

charge of a

... violation of supervised release” and even if the

magistrate judge had such authority, a district court judge

“always has the authority to overturn the magistrate judge’s

determination, when it’s clearly erroneous.” The district

judge ruled that the magistrate judge had clearly erred and

reinstated the revocation proceedings:

Now, Mr. Karst was released from custody

when the magistrate judge did not find a prob

‐

able cause to believe that he committed the

crime based on the—what I view as the errone

‐

ous evidentiary ruling, and I don ʹ t intend to re

‐

visit that. But this matter was set for a final hear

‐ ing. I will preside over the final hearing. It ʹ s still

set for final hearing. And if you would like a

preliminary hearing before the final hearing, I

can grant that and re

‐ hear that. Otherwise, we ʹ ll

simply proceed to the [final] hearing. 2

2 Here the transcript says “preliminary hearing.” Because the district

judge began this sentence with the word “[o]therwise,” we presume he

meant to refer to the “final hearing,” which on September 7, 2018 hadNo. 18

‐ 3675 5

Karst’s counsel objected:

Your Honor, for the record, I will—I want to at

least note my objection, so there’s not any indi

‐

cation that I’m waiving it.

... I haven’t had any

sort of past experience where something has

been brought by the Court short of one of the

parties. And my understanding is the parties

in—in these cases are the Government and the

defense. The Government did not fi le anything

as far as I’m aware that asked the Court to re

‐

view this, so I would object.

During this second hearing, the district judge invited counsel

three times to let him know, presumably by supplemental

brie fi ng, if his analysis was incorrect. While the parties each

successfully moved to adjourn the fi nal revocation hearing,

neither party submi tt ed any substantive fi lings about the pre

‐ liminary hearing or the reinstatement of the revocation peti

‐

tion.

Two months later the third hearing, which was the fi nal

revocation hearing, took place before Chief Judge Griesbach.

Karst testi fi ed he met the two other individuals involved in

the shooting that day and suggested they get lunch together.

They drove to a pizzeria, went inside, ordered food, and then

Karst stated they saw a man who looked like he was “messing

with the bikes or, you know, admiring them pre tt y closely.”

The shooter handed his motorcycle vest to Karst, they left the

pizzeria, and Karst returned the vest to the shooter outside.

Karst maintained he did not know the shooter had a weapon,

already been scheduled for September 21, 2018. That final hearing was

later adjourned three times and took place on December 7, 2018.6 No. 18

‐ 3675

and that he was not involved in any discussion about going

after the man who had looked at their motorcycles. Although

Karst later joined the Mesticas motorcycle club, Karst did not

believe he was a member of any motorcycle club on the day

of the shooting. He said he knew nothing about a feud be

‐

tween the Mesticas and the DC Eagles motorcycle clubs. Karst

also claimed that because “he has bad hearing, and his bike

was very loud, as was the bike next to him,” he was unaware

the shooter fi red at the victim until later. Admi tt ed as exhibits

at this third hearing were videos from the pizza parlor and

from a tra ffi c camera at the intersection where the shooting

took place.

The government contended the shooting related to a mo

‐ torcycle club rivalry. Karst and the other two men wore out fi ts

with Mesticas logos, and the victim wore a shirt with the logo

of Mesticas’ rival, the D.C. Eagles. The government also sug

‐ gested Karst “help[ed] conceal [the shooter’s] identity” by

carrying the shooter’s vest “in case the victim

... look[ed] in

his mirrors or look[ed] behind him.” The government asked

that Karst’s supervised release be revoked because he broke

the law and associated with people engaged in criminal activ

‐ ity.

The defense argued there was no record evidence Karst

was party to a crime 3 of recklessly endangering safety 4 or that

3 Wis. Stat. § 939.05 Parties to crime at (2) states in part: “A person is

concerned in the commission of the crime if the person: (a) [d]irectly com

‐

mits the crime; or (b) [i]ntentionally aids and abets the commission of it;

or (c) [i]s a party to a conspiracy with another to commit it or advises,

hires, counsels or otherwise procures another to commit it.”

4 The second

‐ degree version of this crime criminalizes recklessly en

‐ dangering another person’s safety, while the first

‐ degree adds the elementNo. 18

‐ 3675 7

he was a member of a conspiracy to commit a crime. 5 The

pizza parlor video had no audio, and the other two motorcy

‐

clists did not testify about conversations among the three.

Karst denied they discussed shooting at the victim. Karst also

argued that because he trailed the triggerman by two or three

seconds, he did not assist in the shooting. Due to the lack of

evidence, the defense asked that Karst’s supervision not be

revoked.

The court ruled from the bench and found Karst not cred

‐

ible. The court noted how Karst had accepted the shooter’s

vest and then returned it, presumably to help the shooter con

‐

ceal his identity. From review of the pizzeria video, the court

also found that the victim did not approach the three motor

‐ cyclists’ bikes. The court concluded the interaction among the

three motorcyclists “show[ed] familiarity and much more

than having just met on the streets.” The court found the mo

‐ torcyclists had chased the victim’s pickup truck and that Karst

would have seen the shooter, who was directly in front of

Karst with a hand outstretched fi ring the gun. The court

agreed there was no audible description of a plan but inferred

from the interaction among the motorcyclists inside the res

‐

taurant, throughout the chase, and during the shooting “that

there was an e ff ort and a plan to go after this individual.” The

court found the preponderance of the evidence showed Karst

“conspired as a party to a crime to conduct this drive

‐ by

of acting with utter disregard for human life. Both are felonies. W IS

. S TAT

. § 941.30(1)–(2).

5 Wis. Stat. § 939.31 Conspiracy states in part: “[W]hoever, with intent

that a crime be committed, agrees or combines with another for the pur

‐

pose of committing that crime may, if one or more of the parties to the

conspiracy does an to effect its object, be fined or imprisoned or both

... .”8 No. 18

‐ 3675

shooting or the shooting of another person” and thus violated

the conditions of his supervised release.

The hearing moved directly to sentencing. The govern

‐

ment recommended the statutory maximum of three years in

‐

carceration. The defense noted the guidelines recommended

12 to 18 months incarceration and requested Karst receive 12

months because he was not the shooter and other mitigating

factors. The court agreed that Karst was not the shooter but

found his testimony on his lack of involvement incredible.

The court concluded Karst’s involvement deserved signi fi cant

punishment, in part, because the time and location of the

shooting posed a great danger to the public. After hearing the

defendant’s allocution but without mentioning the sentencing

guidelines, the court imposed a revocation sentence of 30

months incarceration. Karst appealed. 6

II.

A. Preliminary Hearing for

Supervised Release Revocation

At the second hearing, the district judge (1) found the mag

‐

istrate judge commi tt ed clear error in applying the best evi

‐

dence rule, (2) reiterated that the ma tt er was set for a fi nal

hearing, and (3) did not conduct a preliminary hearing to fi nd

probable cause. On appeal, Karst fi rst argues the district court

erred by reinstating the revocation petition without fi nding

there was probable cause to support the petition. Karst points

6 Karst was released from custody by the magistrate judge on Septem

‐

ber 6, 2018. He remained out of custody for three months until the final

revocation hearing on December 7, 2018, at which, after supervised release

was revoked, he was remanded into custody.No. 18

‐ 3675 9

to the text of Federal Rules of Criminal Procedure

32.1(b)(1)(C)—“[i]f the judge does not fi nd probable cause, the

judge must dismiss the proceeding”—and argues “the gov

‐

ernment had no more shown probable cause before the dis

‐

trict judge than it had the previous day before the magistrate

judge.”

The parties disagree as to this court’s standard of review

on this fi rst issue. Karst argues for de novo review and the

government for plain error review. We are persuaded Karst

su ffi ciently objected to the district court’s decision to reinstate

the proceedings. But Karst’s fi rst argument on appeal is not

that the district court erred by reinstating the revocation pro

‐ ceedings; instead, he contends the district court erred by not

conducting a preliminary hearing after it reinstated the pro

‐ ceedings. Karst did not raise, note, or argue this point before

the district court and so seemingly failed to preserve a claim

of error under Federal Rule of Criminal Procedure 51(b). Be

‐

cause no objection to the lack of a preliminary hearing was

ever made, the defendant never presented to the district court

the full argument he now raises on appeal, and the district

court never had the opportunity to consider Karst’s reasoning

on that point. That counsels plain error review under Federal

Rule of Criminal Procedure 52(b). See Pucke tt v. United States

,

129 S. Ct. 1423, 1428–29 (2009) (plain error review limits ap

‐ pellate court authority and induces timely raising of objec

‐

tions before the district court, which is ordinarily in the best

position to resolve the issue).

Even if the objection at the second hearing is viewed more

broadly to encompass Karst’s entire argument, we still con

‐

clude we review for plain error given the events in the district

court. During the second hearing, the district judge noted his10 No. 18

‐ 3675

intention not to “revisit” the magistrate judge’s probable

cause decision. But the district judge twice o ff ered to hold a

preliminary hearing, and during one of those o ff ers he said he

would “re

‐ hear” arguments on the probable cause issue. The

defense did not accept this o ff er to re

‐ hear the probable cause

question. Even more, during the second hearing the district

judge invited counsel three times to let him know if his anal

‐ ysis was incorrect, including by supplemental fi lings. The de

‐

fense did not pursue the ma tt er further and thus never pre

‐

sented to the district court the full argument he now raises on

appeal. If the defense had done so, the district court may have

proceeded di ff erently. This failure to timely assert a right con

‐

stitutes a forfeiture, United States v. Olano

, 507 U.S. 725, 733

(1993), which also results in plain error review. United States

v. Flores

, 929 F.3d 443, 447 (7th Cir. 2019) (“We review forfeited

arguments for plain error

... .).

Plain error review requires the defendant show an error

that: (1) was not intentionally waived; (2) was plain, that is,

clear or obvious; (3) a ff ected the defendant’s substantial

rights; and (4) seriously a ff ected the fairness, integrity, or

public reputation of judicial proceedings. United States v.

Brazier

, 933 F.3d 796, 800 (7th Cir. 2019) (citing Molina

‐

Martinez v. United States

, 136 S. Ct. 1338, 1343 (2016); Olano

,

507 U.S. at 732–34).

Karst fails on the third element, however; he has not

shown that the lack of a preliminary hearing a ff ected his sub

‐

stantial rights. At the fi nal revocation hearing, Karst had a full

opportunity to contest the facts underlying the charges

against him. His counsel cross

‐ examined the only adverse

witness, and Karst testi fi ed to his own version of the facts. No

witnesses or documents have been identi fi ed as a result of theNo. 18

‐ 3675 11

lack of a preliminary hearing, and Karst has not argued that

the lack of such a hearing a ff ected his revocation sentence. In

‐

deed, as a result of the sequence of hearings, Karst remained

out of custody for three months between the magistrate

judge’s dismissal of the revocation petition and its resolution

at the fi nal hearing. Karst has not demonstrated how the lack

of a preliminary hearing caused him prejudice, so the plain

error standard is not satis fi ed here. See United States v.

Robertson

, 367 Fed. Appx. 301, 304 (3d Cir. 2010) (failure to

hold preliminary hearing not plain error when district court

otherwise complied with Federal Rules of Criminal Procedure

32.1 and defendant did not show how lack of preliminary

hearing caused prejudice); United States v. Chin

, 224 F.3d 121,

123 (2d Cir. 2000) (citing United States v. Companion

, 545 F.2d

308, 312–13 (2d Cir. 1976)) (failure to hold preliminary hearing

did not deprive defendant of due process because any defect

was irrelevant in light of valid revocation hearing);

Companion

, 545 F.2d at 312–13 (failure to hold a preliminary

hearing was not prejudicial error when defendant had

already been found in violation of probation following revo

‐

cation hearing). Regardless of his e ff orts on the other three

elements, Karst has not shown an error that a ff ected his sub

‐

stantial rights.

B. Notice of Violation

Karst also argues the district court erred by not identifying

which federal, state, or local crime he commi tt ed. Even if the

crime could be discerned, Karst contends, the district court’s

factual fi ndings are “fundamentally at odds with” its conclu

‐

sion that by a preponderance of the evidence Karst conspired

with the other individuals to commit the shooting. The record

does not show Karst objected on these points, so we again12 No. 18

‐ 3675

review for plain error. United States v. Lee

, 795 F.3d 682, 685

(7th Cir. 2015).

Federal Rule of Criminal Procedure 32.1(b)(2), which gov

‐

erns revocation proceedings, entitles the defendant to notice

of the alleged violation. But this court does not require district

courts to identify a “speci fi c crime” when revoking release.

Lee

, 795 F.3d at 686 (“Lee maintains that both Rule 32.1 and

the Constitution require a citation to a speci fi c statute when

the alleged violation involves a federal, state, or local crime.

Although we accept such a citation as su ffi cient evidence, we

have never held that it is necessary, nor have most of the other

circuits.” (citations omi tt ed)).

Karst admits the wri tt en revocation petition provided him

adequate notice, and we conclude the district court’s state

‐

ment that Karst “conspired as a party to a crime to conduct

this drive

‐ by shooting or the shooting of another person” is

more than su ffi cient to notify him of the violative crime. The

district court need not have labeled Karst’s conduct as “reck

‐ lessly endangering safety,” nor sorted out the complexities of

Wisconsin inchoate criminal law. Our precedent does not im

‐

pose a speci fi city requirement on the district courts but in

‐

stead looks to whether the revocation petition “provides [the

defendant] with enough ‘basic facts’ to give him ‘wri tt en no

‐

tice of the alleged violation’ within the meaning of Rule

32.1(b)(2)(A).” Id

. at 687 (citing United States v. Kirtley

, 5 F.3d

1110, 1113 (7th Cir. 1993)). That standard is satis fi ed here.

Karst also argues the district court’s “conclusion that Mr.

Karst

... was a party to such a crime by conspiracy is funda

‐ mentally at odds with the district court’s own factualNo. 18

‐ 3675 13

fi ndings.” Wisconsin criminal law of conspiracy 7 requires:

“(1) An agreement among two or more persons to direct their

conduct toward the realization of a criminal objective” and

“(2) [e]ach member of the conspiracy must individually con

‐ sciously intend the realization of the particular criminal ob

‐ jective.” State v. Hecht

, 116 Wis. 2d 605, 624, 342 N.W.2d 721,

732 (1984) (citation omi tt ed). Karst asserts the district court

erred by fi nding he was party to a crime of “shooting at a per

‐

son” because the court found the conspiracy’s goal “was to

either frighten or shoot [the victim].” Karst reasons that be

‐

cause the court found the conspiracy’s intent may have been

broader than his intent, the district court failed to show he

“individually consciously intend[ed] the realization of the

particular criminal objective,” here of shooting at a person.

Rather, Karst notes, he “may have simply intended to give

[the victim] a scare.”

Karst oversimpli fi es the district court’s fi nding. That court

found Karst was “well aware of the plan” to “either frighten

or shoot the victim” and that Karst “joined [his associates] in

commi tt ing this crime.” The criminal objective of this conspir

‐ acy—shooting at a person—can lead to a victim being shot at

or merely frightened. Neither the district court nor this court

need analyze the speci fi c intent underlying the criminal con

‐ spiracy. The district court found Karst and his associates

agreed to shoot the victim, Karst was aware of the plan, he

joined his associates in a conspiracy to shoot at the victim, and

he aided the conspiracy when he accepted the shooter’s vest

7 Karst assumes Wisconsin state law applies on this question, but the

supervised release terms require he “not commit any further federal, state

or local law violation,” so federal conspiracy law could also apply. We

consider Karst’s argument on the basis he advances it.14 No. 18

‐ 3675

and then returned it, presumably to help the shooter conceal

his identity. These fi ndings support the district court’s con

‐

clusion that Karst commi tt ed a crime violating his supervised

release.

C. Sentencing Guidelines at Revocation Hearing

Karst’s fi nal arguments are that during the sentencing

phase of the fi nal revocation hearing (the third hearing) the

district court erred by failing to consider and apply the

Sentencing Guidelines and by failing to take his mitigation

testimony into account. We review de novo these claims of

procedural error. United States v. Bustos

, 912 F.3d 1059, 1062

(7th Cir. 2019).

“As with an initial sentencing decision, when deciding

whether to revoke a term of supervised release, the district

court must begin its analysis with the recommended impris

‐

onment range found in the Guidelines.” United States v.

Snyder

, 635 F.3d 956, 959 (7th Cir. 2011) (citation omi tt ed). The

district court failed to identify the appropriate category of of

‐

fense under the Guidelines and to consider the applicable sen

‐ tencing range. The government concedes that fact. We require

remand to the district court if that court did not consider the

Guidelines when revoking a term of supervised release, id

. at

962, and we will so order.

Whether the district court failed to su ffi ciently consider

Karst’s arguments in mitigation is more complicated. During

the sentencing phase, Karst argued he had a minimal role in

the crime, asserted he had adjusted to supervision and stayed

out of “trouble” for years since his release, reiterated that he

“did not know this was going to happen,” and claimed he

tried to cooperate with the police. In the sentencing remarksNo. 18

‐ 3675 15

the district court responded to some but not all of these state

‐

ments. On remand, the district court should evaluate each of

the mitigation points Karst raises.

III.

For these reasons, we AFFIRM IN PART, REVERSE IN

PART, and REMAND for further proceedings. We see no

grounds for Karst’s call to reassign this case under Circuit

Rule 36, so we decline that request.