NONPRECEDENTIAL DISPOSITION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 August 8, 2007
Decided August 30, 2007
Before
Hon. FRANK H. EASTERBROOK, Chief Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
No. 06-4201
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Northern District of
Illinois, Eastern Division
v.
No. 03 CR 1037
ELLIS FRANKLIN,
Defendant-Appellant. Suzanne B. Conlon,
Judge.
ORDER
Ellis Franklin served eight months in prison for defrauding the Department
of Housing and Urban Development. While on supervised release following his
prison term, he committed another crime—preparing fraudulent documents. He
was sentenced to a imprisonment term of 12 months, and now appeals this
sentence. We affirm.
Franklin and a woman schemed to defraud the Department of Housing and
Urban Development by improperly obtaining Section 8 housing assistance
payments. Franklin falsely represented to HUD that he owned a property and that
he rented it to the woman. Relying on these misrepresentations, HUD disbursed
over $26,000 in housing assistance payments to Franklin. In December 2003 he
pleaded guilty to mail fraud, see 18 U.S.C. § 1341, and in February 2004 was
No. 06-4201 Page 2
sentenced to eight months’ imprisonment to be followed by two years’ supervised
release. He was also ordered to pay a special assessment, a fine, and $26,281 in
restitution. While on supervised release, Franklin failed to make the ordered
restitution payments, and in August 2006 the district court modified the conditions
of his supervised release and ordered that he serve the remainder of his term at a
Salvation Army center.
Two months later, Franklin violated the terms of his supervised release by
(1) committing a crime, specifically producing counterfeit documents including
checks, tax bills, and payroll receipts and (2) failing to tell his probation officer that
his home address changed. At the revocation hearing, Franklin admitted these
violations.
The district court imposed a 12-month term of imprisonment—at the top end
of the recommended Revocation Table range—to be followed by a 24-month period
of supervised release. In arriving at this term of imprisonment, the court
considered the recommended range of 6 to 12 months. It also noted that it was
“disappointed” that Franklin violated the terms of his supervised release, especially
in light of his “eloquent statement” at his sentencing hearing for mail fraud. The
court further observed that “preparing false documents” can “hurt or mislead
innocent people.” Franklin raised only one mitigating factor—that his sole
motivation was the desire to help others—but the court rejected it, explaining that
“preparing fraudulent documents, whatever your reasons, that is not the way to
help people.” Finally the court granted the government’s motion, filed under seal,
requesting a delay in Franklin’s reporting date because Franklin was providing
assistance to the government.
On appeal, Franklin challenges his 12-month term of imprisonment, arguing
that the district court failed to take into account all of the 18 U.S.C. § 3553(a)
factors. Franklin offers a list of reasons why he believes a 12-month term is too
harsh, including because it is 50% longer than his original prison term for the
underlying offense; because he has not been charged with the criminal conduct that
led the court to revoke his supervised release; and because he did not get credit for
his assistance to the government.
Before United States v. Booker, 543 U.S. 220 (2005), we would uphold a term
of imprisonment upon the revocation of supervised release unless it was “plainly
unreasonable.” 18 U.S.C. § 3742(e)(4); see United States v. Flagg, 481 F.3d 946,
948-49 (7th Cir. 2007). Since Booker, there has been some debate as to whether
that standard or a “reasonableness” standard applies. See id. Compare United
States v. Bungar, 478 F.3d 540, 542 (3d Cir. 2007) (applying Booker reasonableness
standard); United States v. Miqbel, 444 F.3d 1173, 1176 n.5 (9th Cir. 2006) (same);
United States v. Tyson, 413 F.3d 824, 825 (8th Cir. 2005) (per curiam) (same);
No. 06-4201 Page 3
United States v. Tedford, 405 F.3d 1159, 1161 (10th Cir. 2005) (same); United States
v. Fleming, 397 F.3d 95, 99 (2d Cir. 2005) (same); with United States v. Crudup, 461
F.3d 433, 437 (4th Cir. 2006) (continuing to apply plainly unreasonable standard
post-Booker); United States v. Johnson, 403 F.3d 813, 816-17 (6th Cir. 2005)
(questioning reasoning behind application of reasonableness standard). We have
yet to determine which standard should be applied, see Flagg, 481 F.3d at 949, but
we need not do so here, since we would affirm the sentence under either standard.
When imposing a term of imprisonment for violating supervised release, a
district court must consider the sentencing factors in 18 U.S.C. § 3553(a) and
Sentencing Commission’s policy statements. See Flagg, 481 F.3d at 951; United
States v. Salinas, 365 F.3d 582, 588-89 (7th Cir. 2004); United States v. Marvin, 135
F.3d 1129, 1136 (7th Cir. 1998). And it does not have to make findings as to each of
the factors, as long as its analysis shows that it considered the appropriate factors.
See United States v. Carter, 408 F.3d 852, 854 (7th Cir. 2005); United States v.
George, 403 F.3d 470, 473 (7th Cir. 2005). The district court did that here.
Specifically, it took into account Franklin’s history and characteristics by noting its
“disappoint[ment]” that Franklin had committed fraud once again. See 18 U.S.C.
§ 3553(a)(1). The court also considered the nature and seriousness of his offense
and the need to protect the public by observing that his supervised release violation
operated to “hurt or mislead innocent people.” See id. § 3553(a)(1), (2)(A), (2)(C).
The district court’s decision to sentence Franklin to 12 additional months was
neither plainly unreasonable nor unreasonable.
AFFIRMED.