In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐1517
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
JAMES HERBERT WHITE,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 15 CR 00026‐1 — Elaine E. Bucklo, Judge.
____________________
ARGUED AUGUST 8, 2017 — DECIDED AUGUST 22, 2017
____________________
Before WOOD, Chief Judge, and BAUER and EASTERBROOK,
Circuit Judges.
BAUER, Circuit Judge. While on supervised release follow‐
ing his conviction for failing to register as a sex offender,
James White pleaded guilty to new state charges of credit‐
card fraud and theft. The district court, in response, revoked
White’s supervised release and ordered him reimprisoned
for 20 months—less than what is recommended in the sen‐
tencing guidelines. White argues that this term of reimpris‐
2 No. 17‐1517
onment is plainly unreasonable because, he says, the prose‐
cutor and probation officer made inaccurate statements dur‐
ing the revocation hearing. We acknowledge that the proba‐
tion officer conducted himself inappropriately, but we are
not persuaded that his misguided advocacy affected the out‐
come of the proceeding. White’s new prison term is reasona‐
ble, and we thus affirm the judgment.
I. Background
In 2002, White was convicted in the Circuit Court of
Cook County, Illinois, of battery and sexual exploitation of a
minor. As a result, he was required to register as a sex of‐
fender for 10 years. But in 2009 he failed to update his regis‐
tration to reflect that he was “habitually living” in
Des Moines, Iowa, and in 2011 he was charged in federal
court with failing to register as a sex offender, 18 U.S.C.
§ 2250. White pleaded guilty and was sentenced to
30 months’ imprisonment and 5 years’ supervised release.
While on supervised release, he was to refrain from commit‐
ting additional crimes, obtain his probation officer’s approv‐
al before leaving the judicial district, and participate in sex‐
offender evaluation and treatment if directed by the proba‐
tion officer.
After White was released from prison, the government
moved to modify his conditions of supervision to require
that he submit to a psychiatric evaluation and take pre‐
scribed medications. Underlying this request was a report
from White’s probation officer explaining that White had
“demonstrated difficulty regulating his emotions and be‐
came explosive” during a meeting with a psychosexual‐
treatment provider. In that written report the probation of‐
No. 17‐1517 3
ficer asserted that White had “evidenced similar behavior
while residing at the residential re‐entry center,” where he
once “tossed a food tray against a window.” The probation
officer wanted a psychiatric evaluation to explore White’s
impulse‐control issues.
The district court granted the motion in part and ordered
White to submit to a psychiatric evaluation. White complied,
and the psychiatrist concluded that no psychiatric interven‐
tion was necessary. White then requested that his conditions
of supervised release be modified to allow unsupervised
contact with his grandchildren, and the court obliged.
About three months later, the government moved to re‐
voke White’s supervised release based on a second report
from the probation officer. This new report identified two
violations of White’s release conditions: (1) commission of
new crimes—theft and credit‐card fraud—and (2) leaving
the district without permission on two occasions when he
traveled to Iowa. The probation officer also noted an ongo‐
ing criminal investigation into allegations of robbery and as‐
sault related to White’s time in Iowa. White’s theft and fraud
crimes, to which he pleaded guilty in state court, constitute
Grade B violations. See U.S.S.G. § 7B1.1(a)(2). The probation
officer calculated the policy‐statement range to be 21 to 27
months of custody, based on White’s category VI criminal
history. By statute, however, the term of reimprisonment
was capped at 24 months by 18 U.S.C. § 3583(c)(3). The pro‐
bation officer thus recommended 24 months.
The district court conducted a revocation hearing over
three days. On the first day, the prosecutor asserted that the
probation officer’s recommendation of 24 months was rea‐
sonable and that the term should be imposed consecutively
4 No. 17‐1517
to White’s 6‐year sentence on the new state convictions.
White, the prosecutor argued, had “shown a complete lack
of respect for the law,” and “from the very beginning … eve‐
rything was an argument.” “Everything was difficult,” the
prosecutor asserted, and just “getting him to submit to a
psychological evaluation was difficult.” Defense counsel
disagreed that White had shown extreme disrespect for the
law; rather, counsel asserted, White’s conviction for failing
to register as a sex offender had occurred after he had faith‐
fully registered for nine years and then, during the tenth
year, took a week‐long trip to Iowa and failed to register.
The prosecutor countered that she found “it hard to believe
that a federal judge imposed a 30‐month sentence of impris‐
onment followed by 60 months of supervised release based
on nine years of perfect registration” followed by one failure
to register during a temporary trip to another state. White
himself stated that he had registered for nine years. But his
timeline does not add up: he was convicted of sexual exploi‐
tation of a minor in 2002 and first failed to register just seven
years later, in 2009, although he was not indicted for that
crime until 2011. Neither party introduced evidence to sub‐
stantiate its version of events, and the presentence report
from the 2011 prosecution is not part of the record.
The district court then asked about the underlying crime
that required White to register as a sex offender beginning in
2002. White himself answered, “Consensual sex with a mi‐
nor.” Hearing this, the probation officer interrupted and,
without being invited by the judge or prosecutor, challenged
White’s statement: “There is no consensual sex with a mi‐
nor. … You can’t consent legally. It’s a crime.” After a terse
exchange between the probation officer and defense counsel,
No. 17‐1517 5
the court ended the debate by stating, “That’s not something
that’s, I think, ever in any way before me … .”
There also was disagreement about the age of the victim
of White’s sex offense: the prosecutor said 13; White said 16.
Again, neither party supported its position with evidence.
As for the prosecutor’s assertion that “everything was an
argument” with White, defense counsel responded that
White had been entitled to object to proposed modifications
of the terms of supervised release. More importantly, coun‐
sel explained, White had submitted to the psychological ex‐
amination when it was ordered, and the psychiatrist con‐
cluded that treatment or other intervention was not war‐
ranted.
During allocution White apologized for committing the
2002 crime and for failing to register, but he went on to say
that the “failure to register and the credit card case” were the
“only trouble” he’d been in since 2002. And, White asserted,
he had committed the credit‐card crime because he was hav‐
ing trouble regaining his disability benefits and wanted to
contribute financially to his family. He explained that, due to
restrictions on where he could live, he was unable to reside
with family. But, White continued, he felt obligated to sup‐
port his wife, children, and grandchildren, which he could
not do on $200 per month in food stamps. So he used fraud‐
ulently obtained credit cards to gain cash to pay for housing
and other bills.
When the district court asked that “somebody” supply
details about the credit‐card case, the probation officer
jumped in and explained that White had used counterfeit
government credit cards to purchase gas. (White later elabo‐
6 No. 17‐1517
rated that he had used the cards to buy gas for others, who
would then give him cash.) Even as the prosecutor tried to
address the court, the probation officer didn’t yield:
Your Honor, I mean, the—if I may, the fact of the mat‐
ter is this: You know, from a behavioral perspective,
Mr. White has a severe anti‐social personality disor‐
der. He is sociopathic. There is no—I’m a licensed
clinical social worker. I’ve been a mental health pro‐
fessional for almost 20 years now. I’ve been working
in this job for 19 years, supervising cases like this. It’s
not often that we see people of a sociopathic nature
such as Mr. White. It is what it is. It is what it is. And
he needs to be punished. And the community needs
to be protected from the danger that he poses. He
committed a crime while he was on supervision.
There is allegations that he has committed other
crimes while he is on supervision. There is an active
warrant in the state of Iowa for a robbery that he may
have committed. So—and—that’s the—that’s the
main issue. We’re not talking about somebody that
will benefit from supervision. We’re not talking about
somebody that will benefit from treatment services.
We’re talking about a person who has a very severe
predilection to predatory behavior; whether it be fi‐
nancial, physical, whatever it may be.
In response, defense counsel pointed out that, contrary to
the probation officer’s appraisal, the psychiatrist had con‐
cluded that psychiatric intervention wasn’t necessary. The
probation officer, without waiting for the prosecutor to
speak, retorted that anti‐social, sociopathic individuals are
No. 17‐1517 7
“not amenable to treatment” and that “therapeutic interven‐
tions are not clinically indicated.”
The district court concluded that 20 months’ reimpris‐
onment, consecutive to White’s state sentence, would be ap‐
propriate. The court opined that White was minimizing his
fraud crime, and that there should be punishment specific to
that violation of supervised release. The court went on to
explain that it would not impose a term of supervised re‐
lease:
[I]t certainly doesn’t sound like you’re amenable to
any supervised release. Based on the admissions and
what I’m hearing here about—from you, I am going
to, indeed, revoke your supervised release, and I’m
going to sentence you to 20 months consecutive sen‐
tence in the Bureau of Prison. And that will not be fol‐
lowed by any supervised release. There is no point to
it. So that will end it.
Judgment was not entered that day, however, because the
parties were unsure whether White was entitled to credit
toward his federal term for time served in the Cook County
jail on a federal detainer. The court directed the parties to
return after investigating this question.
The parties appeared twice more before judgment was
entered. On February 22, 2017, the lawyers represented that
White wasn’t entitled to credit because his time spent in the
Cook County jail already had been credited against his state
sentence for the credit‐card fraud. The district judge then
asked the lawyers whether she needed to do anything more
before entering judgment. The prosecutor suggested that the
8 No. 17‐1517
court specifically tie the term of reimprisonment to the fac‐
tors listed in 18 U.S.C. § 3553(a). The judge then stated:
Okay. Well, I certainly did talk about the nature and
circumstances of the offense. We spent quite a bit of
time on that. And I think the history and characteris‐
tics of Mr. White. I specifically declined to enter any
supervised release following his re‐incarceration be‐
cause it’s, I found, and do find, that he wasn’t com‐
plying with the conditions of supervised release, and
it seemed to be really no point to it. The serious crime
is, on which I’m basing the sentence, is that he com‐
mitted credit card fraud while he was on supervised
release.
After defense counsel interjected that the court had not spe‐
cifically discussed the need for the term of reimprisonment
to run consecutively to, rather than concurrently with,
White’s state sentence, the court said it needed more time to
review the record and again continued the hearing.
When the parties returned for the second time, the dis‐
trict court mostly reiterated its reasons for revoking White’s
supervised release and imposing 20 months’ reimprison‐
ment. The court referenced White’s possession of govern‐
ment credit cards and repeated fraudulent use of them, and
noted that White had minimized the seriousness of his crim‐
inal conduct. Next, the judge discussed “the need for the
sentence to reflect the seriousness of the offense, promote
respect for the law and provide just punishment,” stating
that White “had already received a sentence from the state
court, but that really wouldn’t at all take into account the vi‐
olation of supervised release.”
No. 17‐1517 9
The district judge went on to explain her decision not to
impose a period of supervised release, stating that supervi‐
sion had “certainly caused Mr. White … a lot of trouble.”
The judge also alluded to the probation officer’s comments:
[I]t was also clear that the probation officer did not
want him to have further supervised release because
it became clear, at least in the probation officer’s view,
which seemed to be—I found was substantiated by
Mr. White’s conduct that, which is not supervisable.
And is not—is not, in other words, is not amenable to
supervision.
The court then entered a judgment finding that White had
violated his conditions of supervised release in two ways:
committing another crime and traveling outside the district
without permission.
II. Discussion
On appeal, White argues that his below‐guidelines term
of 20 months, to run consecutively to his state sentence, is
plainly unreasonable. This contention goes nowhere; on ap‐
pellate review a below‐guidelines term is presumed reason‐
able, United States v. Mbaye, 827 F.3d 617, 622 (7th Cir. 2016),
and White has not offered any reason to disregard that pre‐
sumption.
Rather, the crux of White’s argument is that the prosecu‐
tor and probation officer injected unreliable and inaccurate
information. This contention sounds in due process rather
than substantive unreasonableness. See United States v. Chat‐
man, 805 F.3d 840, 843–44 (7th Cir. 2015). Defendants have a
due process right to be sentenced on the basis of accurate in‐
formation. See id.; United States v. Mejia, 859 F.3d 475, 478
10 No. 17‐1517
(7th Cir. 2017). White gives examples of statements from the
prosecutor or probation officer that, he says, are inaccurate
or unreliable. In particular, he asserts that (1) the prosecutor,
without any evidence, challenged his version of the facts
underlying both his state sex offense and his conviction for
failing to register, (2) the prosecutor misrepresented that the
district court had modified White’s release conditions to al‐
low him to live with his family, when actually the court had
done no more than permit unsupervised visits with his
grandchildren, (3) the prosecutor and probation officer both
alluded to nonexistent violations of supervised release and
exaggerated in stating that White had continuously failed to
follow the law, and (4) the probation officer launched a “vi‐
cious personal attack” on White that was unprofessional and
turned the judge against him. White further contends that
these statements prompted the judge to impose a longer
prison term on the belief that he wouldn’t be amenable to
supervision.
Most of the alleged inaccuracies are inconsequential, so
we do not discuss them. But we are troubled by the proba‐
tion officer’s inflammatory and unprofessional statements,
which far exceed the bounds of the probation officer’s role as
a neutral information gatherer. See United States v. Peterson,
711 F.3d 770, 778–79 (7th Cir. 2013) (explaining that proba‐
tion officers do not have an adversarial role and should not
be allowed to be perceived as “surrogate prosecutors”). The
probation officer insisted that he is qualified to know that
White “has a severe anti‐social personality disorder,” that he
“is sociopathic,” and that “the community needs to be pro‐
tected from the danger that he poses.” And the probation
officer—again citing his own opinion about his professional
qualifications—further insisted that White would not benefit
No. 17‐1517 11
from supervision, and “has a very severe predilection to
predatory behavior.”
As an arm of the court, a probation officer is not sup‐
posed to take an adversarial role in a sentencing or revoca‐
tion hearing, Peterson, 711 F.3d at 778, and that’s just what
the probation officer did here. Moreover, despite his self‐
proclaimed expertise, the probation officer’s perspective
finds scant support in the record. Indeed, the government
wisely refrains from defending the probation officer’s con‐
duct or contesting White’s argument that the probation of‐
ficer’s accusations lack factual support, instead arguing that
the district court did not rely on the probation officer’s in‐
flammatory statements.
While the probation officer had reported one instance of
White losing his temper at the halfway house and throwing
a food tray, the only psychiatric evaluation in the record—
from a psychiatrist—concluded that clinical intervention
wasn’t necessary. At the time of sentencing, the only violent
crimes that White had been convicted of committing in the
previous fifteen years were the 2002 battery and sex of‐
fense—the details of which are not in the record. And
White’s only convictions during the intervening years were
for not registering as a sex offender and credit‐card fraud.
These acts, while criminal, do not justify condemning White
as a dangerous sociopath. And if there are other facts to
support the probation officer’s assessment, they were not
presented to the district judge.
Still, the probation officer’s tirade, while wildly inappro‐
priate, did not constitute “misinformation of a constitutional
magnitude.” See United States v. Tucker, 404 U.S. 443, 447
12 No. 17‐1517
(1972). The district court explained the need for a consecu‐
tive prison term, without further post‐incarceration supervi‐
sion, to specifically address White’s poor adaption to super‐
vision. That term—which is less than what the Sentencing
Commission and the probation officer had recommended—is
wholly justified by the record before the district judge.
One final note: At oral argument, the government asked
us to modify the judgment to reflect that the district court
only found one violation of supervised release rather than
two. This request is well taken. The district court’s judgment
lists two violations, but during the revocation proceedings
the court repeatedly had said it was concerned only with
White’s violation of the condition forbidding new criminal
conduct. The court did not find that White had violated the
condition of release restricting his travel out of the judicial
district.
III. Conclusion
The judgment is MODIFIED to strike the finding that
White violated the conditions of his supervised release by
leaving the judicial district without permission. In all other
respects, the judgment is AFFIRMED.