*1 698 America, of plaintiffs’ theories” legal
rеlated Plaintiff-Appellee, claims. Tex. State two successful other Ass’n, U.S. at Teachers Second, well within it was S.Ct. 1486. Arch, Defendant-Appellant. Shaon authority to order a court’s the district party’s 14-1354, on a Nos. 14-3096. fee enhancement ruling. its to circumvent efforts peated Appeals, of States Court Perdue, S.Ct. 1662 U.S. Circuit. Seventh (“[A]n may appropriate be enhancement includes an attorney’s performance if the 27, 2015. Argued Jan. outlay expenses and extraordinary 26, 2015. Decided June protracted.”). exceptionally litigation Therefore, court did the district by awarding plaintiffs
abuse its discretion fee enhancement. a 50%
III. CONCLUSION reasons, affirm in foregoing we For the part. We and vacate part affirm judg- summary grant court’s chal- equal-protection plaintiffs’ ment on statute, Sec- the ballot-retention lenge to 2-13-107(f), plaintiffs’ First loyalty-oath challenge to the Amendment 2-1-114(1). statute, also af- We Section fee enhance- the district court’s 50% firm grant district court’s vacate the ment. We plaintiffs’ on First summary judgment 2-1- challenge to Sections Amendment 104(a)(23) 2-13-107(f), the ballot-ac- statutes.
cess and ballot-retention America, STATES UNITED Plaintiff-Appellee, PHILLIPS, Gregory Defendant- J.
Appellant.
the need to “hold [them] accountable for actions.” Although [their] their cases are unrelated, they otherwise raise the same appeal, issue on so we have consolidated them for decision. The argue defendants “accountability” because is not a fac- statute, tor listed the revocation see 18 U.S.C. committed re- procedural versiblе reject error. We argument and affirm.
Background
I. Phillips late 2012 was released from began a five-year period of
supervision in the Western District of Wis- consin.1He soon violated his release condi- in multiple ways. tions marijua- He used na; attempted to dilute a urine sample; and he left the district without his permission. officer’s proba- tion officer enrolled him in sweat-patch testing to closely more monitor drug During months, use. the next several Phillips again traveled outside the district permission. without He also tested posi- (twice drug tive for use three times Connell, Paul Attorney, W. Peter M. cocaine and once for opiates) repeated- Jarosz, Rumbelow, Attorney, Rita M. At- ly failed to comply sweat-patch with test- torney, Office of the United Stаtes Attor- ing. Finally, he person associated with a ney, Madison, WI, for Plaintiff-Appellee. engaged in criminal activity. Based on Moyers, Peter R. Attorney, Federal De- violations, these in late 2013 the district Wisconsin, Inc., fender Services of Madi- issued a warrant for arrest. son, WI, for Defendant-Appellant. apprehension evaded months. POSNER, SYKES, Before
HAMILTON, Judges. Circuit Phillips arrested, Whеn was finally Dis- trict Judge Barbara Crabb held a revoca-
SYKES, Judge. Circuit hearing, at which Phillips stipulated to Gregory Phillips and Arch Shaon violat- the charged violations. The ed the conditions of their reimprisonment recommended for 12 to 18 7B1.4(a). lease and were returned to court for revo- months. See U.S.S.G. Phillips proceedings. cation argued range, noting the bottom of the sеnt them in part steadily back on that he employed during su- 841(a)(1). 1. He possessing served 132 months for co- U.S.C. caine base with intent to distribute. See 21 arrested Illinois left He was actively involved Wisconsin. and was pervision At the assaulting two of his sisters. explained that he He also children’s lives. arrest, strongly Arch smelled time of his he wanted to be arrest because had evaded open bottle of possessed alcohol daugh- their the birth of his wife for liquor. ter. *3 charged Arch with conduct was For this supervi-
Judge Crabb revoked
release:
violations of
several
him to
returned
sion and
officer’s instruc-
disobeying
probation
his
months,
the
six months above
crime,
tions,
leaving
committing another
had
acknowledged that he
range. She
permission,
the
district without
employment
maintain
hard” to
“work[ed]
Judge
alcohol.
Crabb revoked
using
and
that he
but concluded
supervision,
on
while
him
and ordered
reim-
supervision
Arch’s
opportuni-
an
away,” along
it
with
“thr[e]w
of 12
within-guidelines
for a
term
prisoned
children,
young
and
with his wife
ty to be
Arch
judge emphasized that
months. The
violating the conditions of
repeatedly
and
“impossible”
supervise
proven
Phil-
also noted that
supervision. She
his
to others based on
рosed “great danger”
original
when his
lips received a “break”
She also noted
the attack on his sisters.
substantially reduced
prison sentence
mental health
“very
that Arch had
serious
changes to the sen-
subsequent
on
comply
and had “refused to
problems”
See
tencing
guidelines.
Finally,
in Phil-
any
treatment.”
as
3582(c)(2)(authorizing the court to modi-
§
case,
judge cited the neеd to
lips’s
the
imprisonment when the
fy a sentence of
accountable for
actions
[Arch]
[his]
“hold
guide-
on a
original
was based
sentence
community.”
protect
and
subsequently lowered
range
lines
that
Commission).
Sentencing
Sum-
by the
II. Discussion
reimpris-
ming up,
said the
that
argue
Judge
The defendants
Crabb
you
meant to “hold
ac-
onment term was
by relying on
procedural
committed
еrror
your
protect
actions and
countable
“accountability,” a factor not
the need for
community.”
§in
enumerated
statute
Arch was released from
August 2014
decisions. We dis-
governs revocation
began
three-year
term of
agree.
in the
District of
supervision, also
Western
3583(e) gives the sentenc
Phillips,
Like
he soon violated
Section
Wisconsin.2
tools to dеal with of
supervision.
ing judge
Because
the terms of
violate the terms of their su
place
not have a
to live when he
fenders who
Arch did
here,
pervised release. As relevant
prison,
was released from
super
court to revoke
permits
him a
shelter and
statute
officer took
to homeless
reimprisoned
the violator
facility.
Arch left vision and order
tоld him not to leave
considering a subset of the factors
day
that same
and was arrest-
after
the shelter
3553(a),
general
sen
later. He was released
set forth
ed a few hours
tencing statute.3 The need to hold the
to return to the shelter.
with instructions
defendant accountable is not listed.
disappeared again
so but soon
did
considering
may,
the fac
possessing а fire-
2. He served 27 months for
[t]he
3553(a)(1),
section
tors
set
forth in
§ 922(g)(1).
arm a felon. See 18 U.S.C.
(a)(5),
(a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(6),
(a)(7)
... revoke a term of
provides that
Specifically,
3.
the statute
require
the defendant
vised
3583(e)
accountability
But
anis
obvious concern
(cross-referencing
3553(a)(1),
(a)(2)(B),
whenever an offender
(a)(2)(C),
has violated the con
(a)(2)(D), (a)(4), (a)(5),
(a)(6),
(a)(7)).
ditions of
releаse —so obvious
may
not tell us much about the
here,
considered these factors
judge’s rationale for the revocation deci
in summary
albeit
fashion.
In both cases
so,
nothing
sion. Even
there’s
improper
judge began by
correctly calculating
considering
about
it. To
contrary,
and considering the reimprisonment range
offender who violates the conditions оf su
recommended
guidelines.
Opting
pervised release commits a “breach of
a longer
case,
term in Phillips’s
trust,”
primarily
and revocation is
aimed judge specifically relied on the need to
sanctioning
breach.
ch.
U.S.S.G.
protect the public as well
Phillips’s poor
A,
3(b)
pt.
introductory cmt.
(emphasizing compliance history on supervision and the
*4
the “breaсh of trust” rationale for revoca
fact that
original prison
his
sentence had
tion policy); see United
Clay,
States v.
752
reduced,
been substantially
(7th
1106,
Cir.2014)
F.3d
1109
(explaining judge characterized as a “break” that en-
judge’s
“just
that a
punish
remarks about
him
abled
to be reunited with
his
properly
ment”
“describe a sanction that
sooner than expected. She also acknowl-
conveys
importance
the
of obeying condi
edged his “hard work” in holding
joba
(internal
tions of
release”
quo
released,
after being
emphasized
but
omitted));
tation marks
United States v.
away”
he
by repeatedly
“thr[e]w
violat-
Johnson,
(6th
195,
Cir.2011);
640 F.3d
203
ing the
of
supervision.
conditions
his
233,
United States v. Young, 634 F.3d
241 judge’s reliance on accountability as an
(3d Cir.2011); United States v.
444
Miqbel,
justification
added
for the 24-month term
(9th
1173, 1182
Cir.2006).
F.3d
comfortably
fits
under
general
the
heading
To the extent
argu-
the defendants are
of “deterrence” and was
improper.
3583(e)
ing
§
that the list of
in
factors
Arch,
As for
the judge settled on a
exclusive, they are
mistaken.
United
within-guidelines term
reimprisonment
of
Clay,
States v.
we held that a district court
of 12
specifically emphasized
months. She
may consider the factors listed in subsec-
(recall
protect
the need to
public
(a)(2)(A) §
of 3553—the seriousness of
Arch attacked his sisters
absconding
after
offense, respect
law,
just
from supervision). She also noted Arch’s
though those factors
—even
unwillingness
to abide
§
are not mentioned in
long
as
directions,
officer’s
“very
serious men-
primarily
the court “relies
on the factors
problems,”
tal hеalth
and his
“refusfal]
3583(e).”
1108-09;
listed in
comply
any
again,
treatment.” Here
Young,
see
guidelines prison
but ultimately cocaine and acy to distribute judge corrеctly noted the explained, the (That in prison. to 132 months sentenced range recommended reimprisonment original sentence was a resentence —his months) (12 to 18 as well months.) staggering had been a factors, statutory including the relevant months of his 132- served total characteristics, history and being month sentence. Soon public, (broadly protect need to began violating leased *5 And the need for deterrence. speaking) that supervised release conditions judge imprisonment because the chose sentencing judge imposed using mar- — suggest- fairly term close to the sample a urine ijuana, attempting to dilute range years and three below the statu- ed illegal drugs use of in order to conceal his maximum, explanatiоn was tory extensive officer, leaving from his States, required. See Gall v. United judicial per- district without the officer’s 38, 50, 586, 169 L.Ed.2d 552 U.S. 128 S.Ct. mission. Out of concern for defen- Jones, (2007); United States illegal drugs, the dant’s continued use of (7th Cir.2014). him to probation officer ordered wear An alternative to urine patch.” “sweat AmRMEB. use, patch a sweat testing illegal drug for POSNER, Judge, concurring Circuit attached to оne’s pad is a small absorbent dissenting. body by arm or back or elsewhere on quan- small strip. an adhesive It absorbs majority’s agree I with the decision sweat, wearing if person tities of I reverse Phil- appeal, Arch’s but would or heroin patch consuming cocaine my limit discussion lips’s and will that reveal will contain molecules majority The errors in the accordingly. body. The drug’s presence person’s in the discussing that I with refer- opinion will be every is removed week and sent to patch only Phillips spill over into its ence to laboratory presence for the of such to test Arch, in the case of Arch analysis of but molecules. harmless; Phillips in the case of they are they are not. being “patched,” the defendant After tested period within a of months twice
Phillips’s case is another illustration of
drugs,
removed the
positive
illegal
of our
difficulty,
discussed
weekly testing
than for the
cases,
Kappes,
patches
other
recent
see United States
(he
they
Cir.2015);
contradiction that
claimed without
error. punishment a precondition That is deciding on the ble. required is likewise tors severity. for prescription than a rather a condition of su violating for Boult States v. pervised distressed, by the finally, I am 1163, 1177-79 Cir. inghouse, the harsh sen- base judge’s appearing to im 2015)-for just like the punishment, “really fact the defendant tence on the supervised re of conditions position him, many unlike so things going for” had and unless sentence lease, is a he is be- is that implication The ex-cons. sentencing Cоngress, the specified is being able extra-severely for ing punished it imposing consider its judge must before many former do, so doing, what to 3553(a) factors. conformity to section convicts, who like him especially those case, in this and the That was not done sentences, are un- long have served error, though allows the majority opinion being released—maintain to dо after able error, pass. to it is a reversible employ- obtain decent an intact lawyers hearing from After hand). (which go hand ment of course defendant, judge addressed the the district both of the de- jeopardizes The sentence “You did work hard. defendant as follows: As a result of achievements. fendant’s long could work at you fact that years prison, spending two more get joba and then place the fast food for job opportunities likely to lose his Furniture, you really mean Ashley I may lose employment; he gainful future You were set. I you. things going family. I know people all kinds mean there are to articulate rational failed kind of success that haven’t had that sen- above-guidelines basis to throw And then getting prison. out of imрosed should The sentence she tence. a sen- going impose I’m away.... it be reversed. quite a bit above the slightly well, tence — this sen- intent of guidelines range. The meant hold ‘is’] must have [she
tence your pro- actions and you accountable it, community.” And that’s so far tect requirement with the compliance the sentence im- judge justify sentencing did not cite repeаt, To posed. *7 3553(a) the sen- or mention it, “protect unless tencing factors listed TIDWELL, Plaintiff- Cleother one. Cf. community” be considered can Appellant, 3553(a)(2)(C). defendant Yet the does to the communi- appear to be a threat gave no reason at all And the ty. HICKS, al., Bryce Defendants- et above-guidelines Appellees. had not I noted the which as requested. 14-2365. No. “accountability” reference Appeals, Court A defendant is difficult understand. Circuit. convicted, sentenced, Seventh let alone cannot be