NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 4, 2013
Decided January 15, 2014
Before
JOEL M. FLAUM, Circuit Judge
FRANK H. EASTERBROOK, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 13‐2463
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Northern District
of Illinois, Eastern Division.
v.
No. 1:06‐cr‐00193‐1
ULANDERS PATRICK,
Defendant‐Appellant. John F. Grady,
Judge.
O R D E R
Ulanders Patrick challenges, on procedural grounds, his 12‐month prison sentence for
violating the provisions of his term of supervised release. Because the district court both
properly considered the guidelines’ policy statements regarding violations of supervised
release and adequately explained its reasons supporting the sentence, we affirm.
Background
On October 11, 2006, Patrick was sentenced to 37 months’ imprisonment, to be
No. 13‐2463 Page 2
followed by three years of supervised release, pursuant to a guilty plea to a bank
robbery count. He was also required to pay $1,626 in restitution. Patrick began his
supervised release in July of 2009.
On November 21, 2011, Patrick was arrested for theft of services for using the
Chicago transit system without paying. He failed to notify his probation officer of his
arrest. On the Probation Office’s recommendation, the district court modified Patrick’s
supervised release to require him to perform 40 hours of community service.
On June 21, 2012, the Probation Office petitioned the district court to schedule a
show‐cause hearing to address Patrick’s violation of the terms of his supervised release.
The asserted grounds for revocation included his arrest for theft of services, as well as
his failure both to complete the required community service and to pay restitution. The
Probation Office noted that Patrick falsely claimed to have diligently attempted to
complete his community service, when in fact he had made negligible effort to contact
the community service organizations made available to him. On July 18 the district
court revoked Patrick’s supervised release and sentenced him to one day of
incarceration, to be followed by an additional year of supervised release. The new term
of supervised release continued to impose a condition that Patrick complete 40 hours of
community service.
When Patrick still failed to either perform the required community service or pay
restitution, the Probation Office on December 10, 2012, petitioned the district court a
second time to revoke his supervised release. The Office recommended, given Patrick’s
financial condition and difficulties in securing employment, that he be sentenced to 120
days in the custody of the Salvation Army to complete his community service. Neither
Patrick nor his attorney appeared at the subsequent show‐cause hearing. The court
thereupon scheduled a second hearing for February 6, 2013.
On January 30, before that show‐cause hearing could take place, the Probation
Office informed the district court that Patrick had tested positive for marijuana; that he
had been arrested on September 6, 2012, for consuming alcohol on the Chicago transit
system (although charges stemming from that alleged incident had already been
dismissed); and that he had failed to notify the Probation Office of his latest arrest. The
Probation Office reiterated that Patrick had still not completed his community service,
despite repeated orders from the court. It again recommended that Patrick be remanded
to the custody of the Salvation Army for 120 days. As with his previous court date,
Patrick failed to appear for the show‐cause hearing on February 6, although this time
his counsel did attend. The district court responded to the Probation Office’s
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recommendation by increasing Patrick’s required community service to 60 hours, and
ordering that it be completed by May 31, 2013. The court based its order on Patrick’s
“fail[ure] to make a good‐faith effort to perform any of the community service
previously ordered by the Court.”1
On June 5, the court was compelled to hold yet another status hearing regarding
Patrick’s supervised release. Patrick had still not completed his community service
requirement, which had now been outstanding for approximately 18 months. At the
hearing, he argued that he had recently been hired at a new job, and he requested
additional time to complete his community service so that he would remain employed.
The Probation Office informed the court that placement at the Salvation Army was no
longer possible, and recommended a 30‐day prison sentence. The policy statements
contained in § 7B1.4 of the Sentencing Commission’s guidelines manual recommend a
sentence of three to nine months for violation of supervised release.
The district court again revoked Patrick’s supervised release. The court expressed
its frustration with Patrick’s failure to explain why he could not perform the required
community service. It remarked that it had previously warned Patrick that, if he failed
to complete his 40 hours, he would face a significant prison term. (As the government
concedes, the district court misremembered this point. It had not previously cautioned
Patrick that prolonged imprisonment could be a consequence of violating the service
condition of his release.) The court remarked “Well, I am sorry, Mr. Patrick, but I think
that I must follow up on what I said I’d do. Otherwise, supervised release becomes a
meaningless exercise.” It further stated that “I have done everything I can to keep this
man out of jail and in pursuit of some sort of gainful employment, but it does not
work.” The district court sentenced Patrick to 12 months in prison.
Discussion
“Appellate review of a sentence for violating the terms of supervised release is
highly deferential.” United States v. Robertson, 648 F.3d 858, 859 (7th Cir. 2011); United
States v. Kizeart, 505 F.3d 672, 675 (7th Cir. 2007) (describing such deference as the “the
narrowest judicial review of judgments we know”). Patrick does not challenge the
substantive reasonableness of his 12‐month sentence. Instead, he advances two
procedural objections. First, he contends that the district court failed to calculate the
applicable guidelines range for his violation. And second, he argues that the district
court failed to adequately explain its sentence, or to consider the sentencing factors of 18
U.S.C. § 3553(a).
1
In fact, this point was slightly overstated; Patrick had in fact completed two hours of community service.
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At the outset, the government notes that Patrick has forfeited both his arguments by
failing to timely object to any supposed procedural irregularities in the district court’s
sentence. Patrick does not dispute this point, and provides no reason to think he was
denied an opportunity to object to the district court’s sentencing procedure. As a result,
we review his contentions only for plain error. The district court’s sentencing will stand
unless Patrick “can demonstrate an error that is plain, that affects his substantial rights,
and that seriously affects the fairness, integrity or public reputation of the judicial
proceeding, effectuating a miscarriage of justice.” United States v. Iacona, 728 F.3d 694,
699 (7th Cir. 2013). Patrick’s contentions fall far short of meeting that high standard.
I. The Commission’s Policy Statements
Patrick’s first procedural argument is that the district court failed to accurately
calculate the applicable guidelines range. The problem with this argument is that there
is no applicable guidelines sentence governing violations of supervised release. The
Sentencing Commission has merely issued policy statements in § 7B1.4, which have less
force than guidelines. “[P]olicy statements . . . are neither guidelines nor interpretations
of guidelines.” United States v. Hill, 48 F.3d 228, 231 (7th Cir. 1995); see Robertson, 648
F.3d at 859 (policy statements “are intended to be given even less consideration” than
the advisory guidelines); Kizeart, 505 F.3d at 675 (“[T]he Sentencing Commissionʹs
decision not to issue [formal] Guidelines implies that the sentencing court should have
more than usual flexibility in sentencing for violations of conditions of supervised
release.”). Patrick cites no authority suggesting that the failure to treat a policy
recommendation as a guidelines range is error, let alone plain error affecting the justice
of his sentencing.
In response, Patrick notes that Section 3553(a)(4)(B) requires the district court, in
sentencing a defendant for violation of supervised release, to “consider . . . the
applicable guidelines or policy statements issued by the Sentencing Commission.”
Indeed, “when deciding whether to revoke a term of supervised release, the district
court must begin its analysis with the recommended imprisonment range found in the
Guidelines.” United States v. Snyder, 635 F.3d 956, 959 (7th Cir. 2011); United States v.
Neal, 512 F.3d 427, 438 (7th Cir. 2008) (holding the same, and noting that “these ranges
inform rather than cabin the district courtʹs sentencing discretion”) (citation and
quotation marks omitted). And in Robertson, this court noted that “the sentencing judge
should give a reason, however brief, for ignoring such recommendations.” 648 F.3d at
860.
However, the district court did consider the Commission’s policy suggestions,
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which were reflected in the Probation Office’s proposed sentence. Even though the
court did not explicitly recite the recommendation, it considered a lower sentence than
recommended by the Commission—i.e., the one‐month term suggested by the
Probation Office. See United States v. Pitre, 504 F.3d 657, 664 (7th Cir. 2007) (affirming a
sentence against procedural challenge because “[t]he court . . . indicated that it had
considered a period of confinement at or below the recommended range of three to nine
months” before imposing a longer term, even if it did not explicitly recite the policy
recommendation). And the court clearly enunciated its reasons for rejecting such a
sentence, including Patrick’s persistent and unexplained failure to perform community
service and the need to promote respect for and compliance with conditions of
supervised release. The district court repeatedly explained to Patrick why his dilatory
conduct showed contempt for the terms of his release, and gave him several
opportunities either to offer arguments in mitigation or to comply with its orders. This
case is therefore clearly distinguishable from the unexplained sentence in Robertson, in
which the court “didnʹt give a reason” for the sentence imposed. 648 F.3d at 859; see
Snyder, 635 F.3d at 962 (7th Cir. 2011) (finding that “there is nothing in the record”
indicating that the court “carefully reviewed the Guidelines range”).
In sum, the district court plainly satisfied its obligation to consider the Sentencing
Commission’s policy position. “[I]t is clear from the totality of the judgeʹs statements
that he considered and discounted [the Sentencing Commission’s] policy arguments.”
United States v. Reyes‐Medina, 683 F.3d 837, 842 (7th Cir. 2012). See United States v.
Jackson, 547 F.3d 786, 793 (7th Cir. 2008) (“[T]he judgeʹs comments at sentencing, as
recounted above, clearly indicated that he properly incorporated consideration of the . .
. policy statement into his overall § 3553(a) analysis.”).
II. The District Court’s Sentencing Explanation
Patrick’s second procedural contention fares no better. The district court extensively
considered the need to promote respect for the law, in this case the terms of supervised
release. It noted that a one‐year sentence would deter other offenders from ignoring the
terms of their release. It considered an alternative sentence—120 days with the
Salvation Army—before deciding that this alternative was both unavailable and
insufficient to correct Patrick’s defiance of the court’s orders. The court was not
required to list the Section 3553(a) factors or to exhaustively consider each one. In
Robertson, this court noted that the sentencing judge “must . . . say something that
enables the appellate court to infer that he considered [the sentencing factors].” 648 F.3d
at 860. The district court in this case said more than enough to demonstrate that it had
considered the Section 3553(a) factors and to explain the reasons supporting the
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sentence.
Finally, Patrick contends that the district court failed to address his arguments in
mitigation regarding his successful drug treatment, recent employment, and his ability
to avoid recidivism. However, the court also heard evidence that Patrick had tested
positive for marijuana, had been unemployed for much of the term of his supervised
release, and had been arrested twice in that period. Patrick’s arguments for mitigation
are therefore frivolous and did not warrant a response from the district court. See United
States v. Gary, 613 F.3d 706, 709 (7th Cir. 2010) (“The judge need not be explicit where
anyone acquainted with the facts would have known without being told why the judge
had not accepted the argument.”) (citation and quotation marks omitted). The court did
not err in explaining its sentence, and even if it had, we find that such an error in this
case would not constitute a miscarriage of justice.
Conclusion
Because Patrick’s procedural arguments are meritless, we AFFIRM the decision of
the district court.