UNITED STATES of America, Plaintiff-Appellee, v. Ramon ALVARADO, Jr., Defendant-Appellant.
No. 11-2825.
United States Court of Appeals, Seventh Circuit.
Argued April 25, 2012. Decided May 16, 2012.
679 F.3d 852
Jonathan H. Koenig, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee. Eric C. Bohnet, Indianapolis, IN, for Defendant-Appellant. Before RICHARD A. POSNER, Circuit Judge, DIANE S. SYKES, Circuit Judge and JOHN DANIEL TINDER, Circuit Judge.
In 2011 the district judge concluded that Ramon Alvarado, Jr., had violated the terms of his supervised release seven times. His release was revoked, and the judge imposed a two-year term of reimprisonment, the maximum permitted by statute.
In 2008 Alvarado, a member of the Milwaukee chapter of the Almighty Latin King Nation (a street gang), pled guilty to a RICO violation,
Alvarado left prison in January 2011 and despite being reminded of the terms of his supervised release by his probation officer, repeatedly violated those requirements. Early in the morning on February 17th, 2011, a police officer encountered Alvarado in a car with a felon who was in possession of two loaded firearms. Alvarado was not taken into custody, but was questioned by a police officer and failed to report the questioning to his probation officer. He also ignored his probation officer‘s instruction to attend a treatment group meeting, and refused to meet with the probation officer. During routine drug testing—a requirement of Alvarado‘s release—he tested positive for THC (the principal active chemical in marijuana) three times and cocaine once, and during a search of his residence, police discovered eight baggies of cocaine. In a report prepared for Alvarado‘s revocation hearing, a probation officer concluded that the behavior described above constituted six violations of the terms of supervised release.
The report also listed a seventh violation: On March 22, 2011, a police officer discovered a stolen car and saw a man exiting the car. The officer shouted for the man to stop, but instead the man fled and was able to escape arrest. The police arrested a woman who had been in the car, and she told them that the man had been Ramon Alvarado.
At the revocation hearing, Alvarado‘s supervising probation officer was the sole witness, and her testimony recounted, among other things, her report‘s descrip-
During the hearing the judge stated that he had read the revocation hearing report and asked the parties if they believed that the guidelines range—7 to 13 months—had been correctly calculated. Both parties agreed that it had, but the government recommended a 24-month term, citing Alvarado‘s deliberate and repeated failure to observe the release terms.
Alvarado did not provide sworn testimony at the hearing, but did make a statement to the court. He did not dispute the possession or obstruction violations and conceded that he had used drugs during his release. He denied, however, that he had known that the man driving the car at the February car stop was a felon. At the conclusion of argument by counsel, the judge began with a discussion of the role the advisory guidelines play in revocation hearings:
Well, the Court has to look at the same things as it looked at on the original sentence. And that is the—taking the guidelines that are and always have been guidelines, and integrating them now into, of course, the factors under [
18 U.S.C. § 3553 ], which direct the court to look at the nature and circumstances of the offense—in this case offenses—and the history and characteristics of the Defendant, and then make a decision and impose a sentence not more than necessary to achieve the same objectives that the guidelines have, such as reflecting the seriousness of the offense or offenses, promote respect for the law, create a just punishment, provide ade-quate deterrence, and protect the public from further crimes.
The judge then discussed, among other things, Alvarado‘s difficult childhood, the pernicious effects of gang violence on Milwaukee‘s neighborhoods, the nature and circumstances of his release violations, that the pattern of Alvarado‘s behavior reminded the judge of one of his clients from his days in private practice, and the possibility that Alvarado‘s drug use as a child could have caused lasting brain damage. He further noted that Alvarado had “caught a break” during his original sentencing by receiving a below-guidelines sentence. Cf. U.S.S.G. § 7B1.4 cmt. n. 1 (advising that in cases where the defendant originally received a below-guidelines sentence, an above-guidelines reimprisonment term may be warranted).
The judge ultimately found that the government had presented sufficient evidence of the seven violations alleged in the revocation hearing report. Although he discussed some individual violations, he did not explain his finding that Alvarado had obstructed or resisted an officer. Finally the judge noted “My problem is I can‘t give you a break. I‘ve got to accept the Government‘s recommendation here because of all of this.” He then imposed a 24-month term of reimprisonment.
Alvarado‘s arguments on appeal seek to show that his reimprisonment term was imposed in a procedurally unreasonable manner (he does not contend that it is substantively unreasonable). He first argues that the judge failed to consider the guidelines range as a starting point. When determining a reimprisonment term, a district court “must begin its analysis with the recommended imprisonment ranges found in U.S.S.G. § 7B1.4,” United States v. Neal, 512 F.3d 427, 438 (7th Cir.2008), and “may not ignore the Sentencing Commission‘s views embodied in
Alvarado also argues that the judge mistakenly believed that he was required to accept the government‘s recommendation regarding reimprisonment. This argument is frivolous and rests on a strained reading of the judge‘s comments. Read in context, the judge‘s remark—“I‘ve got to accept the Government‘s recommendation here because of all of this“—meant that Alvarado‘s behavior (i.e. “all of this“), rather than the recommendation, compelled the judge to impose the maximum reimprisonment term.
Alvarado next argues that the judge did not adequately discuss the
Nevertheless, Alvarado insists that this case is indistinguishable from Snyder, a case where this court vacated an above-guidelines reimprisonment term because the district court failed to adequately explain why the term imposed was significantly higher than the guidelines range. There, the reimprisonment term was vacated even though the judge had discussed three of the
Finally, Alvarado argues the judge committed a procedural error by inadequately explaining his basis for finding two of the violations: Alvarado‘s association with a felon and his violation of a state or local law by resisting or obstructing an officer. We will vacate a sentence if it is “based on clearly erroneous facts.” Gall, 552 U.S. at 51. Since the standard of review for revocation proceedings is more deferential, a revoking judge
The finding that Alvarado resisted or obstructed arrest is more problematic, and the government now concedes that the district judge had no basis to conclude that Alvarado obstructed or resisted an officer, since the only evidence supporting the alleged violation was stricken. But a reimprisonment term does not become plainly unreasonable simply because the judge makes an erroneous finding; no error occurs until the judge selects a reimprisonment term relying on the false finding, see Gall, 552 U.S. at 51, and because Alvarado is the appellant, he is required to make an initial showing of that reliance, see United States v. Smith, 562 F.3d 866, 874-75 (7th Cir.2009) (citing Williams v. United States, 503 U.S. 193, 203, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)). But Alvarado does not meet this burden, and the record shows that the judge never mentioned the obstruction violation in his ruling, despite his lengthy discussion of Alvarado‘s well documented failed rehabilitation. Since Alvarado did not show reliance, we conclude that the judge did not commit a significant procedural error by erroneously finding the obstruction violation.
AFFIRMED.