In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-2970
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY C. JORDAN,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:04-cr-20008-SEM-TSH-1 — Sue E. Myerscough, Judge.
____________________
ARGUED NOVEMBER 17, 2020 — DECIDED MARCH 18, 2021
____________________
Before EASTERBROOK, HAMILTON, and ST. EVE, Circuit
Judges.
HAMILTON, Circuit Judge. During his first three months
while on supervised release, Anthony Jordan consistently
tested negative on drug tests and called the probation office
to find out about his next required tests. Nonetheless, over
two days in June 2019, he missed a drug test and two assess-
ments, prompting his probation officer to petition to revoke
his supervised release. The district court ruled that Jordan
2 No. 19-2970
had committed the violations, revoked his supervised release,
and sentenced him to six months in prison followed by 26
months of supervised release (including 120 days in a halfway
house). Jordan has appealed. We conclude that the district
court did not sufficiently explain its decision, consider Jor-
dan’s defense that his violation was unintentional, or other-
wise ensure that its sentence conformed to the parsimony
principle of 18 U.S.C. § 3553(a). We therefore reverse the judg-
ment.
Jordan was originally convicted of crimes involving crack
cocaine in violation of 21 U.S.C. § 841. In March 2019, he be-
gan three years of supervised release. Shortly afterward, his
probation officer petitioned to revoke supervised release
based on three alleged violations. The first two occurred on
June 3, 2019, when Jordan allegedly did not complete his re-
quired mental-health and substance-abuse assessments. The
next day, June 4, he failed to attend his required drug test. In
a separate memo, the probation officer reasserted each viola-
tion. Based on these violations, the probation office recom-
mended that Jordan return to prison for 10 months, followed
by another term of supervised release. Jordan contested the
petition.
The district court held a hearing on the petition. Before re-
ceiving testimony from the government, the court asked Jor-
dan’s counsel if he objected to the violation memorandum.
Counsel said “no.” The court then announced that it was
adopting “the factual findings of the violation memoran-
dum.” After this announcement, the government’s witnesses
testified that Jordan had missed the two assessments on June
3 and the drug test on June 4, that they could not reach him,
No. 19-2970 3
and that it therefore took longer to set up these evaluations,
which eventually occurred.
Jordan testified next about his efforts to comply with his
conditions of supervised release. Regarding drug testing, he
testified that every day, either he, his mother, or his girlfriend
would call the testing and assessment facility to check in to
see if testing was required that day. He testified that, on June
4 (the date of his missed drug test), he called but he did not
hear his number come up on the recorded message. He
acknowledged that he had not listened to the entire message
but explained that he thought that he had listened to the por-
tion that applied to him. He also emphasized that he had not
tested positive in any of his previous drug tests (about three
per month).
Regarding the mental-health and substance-abuse evalua-
tions, he testified that he had met with his probation officer
on May 28 to discuss the screenings. He agreed to them, and
the officer said that she would contact him. According to Jor-
dan, at that meeting, he thought that they had planned for his
next assessment to occur on June 26. It was not until that date
(June 26), he explained, that he realized that he had missed
his appointment for June 3.
Jordan testified about his other efforts to comply with con-
ditions of release. He explained that he gave his probation of-
ficers multiple phone numbers so they could reach his mother
when he was not available, as occurred when he was in
church. He also noted that he went to an emergency room on
June 17 to seek a mental-health evaluation:
[W]hen the doctor talked to me, he told me that
they didn’t do it there. He gave me a list of
4 No. 19-2970
places to go there. And I went from there. And
every time I went to take a drop, I asked them
about my mental health evaluation. And I kept
telling them I need it done. And at this time, I
didn’t even know she had referred me. I was
just trying to do it on my own, you know.
A month later, Jordan said, he called the assessment facil-
ity from 6:00 am to 11:00 am for an assessment, finally reach-
ing a clinical supervisor whom he saw that day. The supervi-
sor said that he had the power to schedule assessments on that
day but did not do so; instead he tried to call Jordan later to
schedule an assessment. Eventually, the supervisor reached
Jordan’s mother and scheduled an assessment for mid-Au-
gust. The assessment never occurred, however, because by
that time Jordan was in custody on the charged violations.
After this testimony, the district court ruled for the gov-
ernment. It found by a preponderance of the evidence that
Jordan had violated the terms of his supervised release by
“failing to participate in drug testing as directed, failing to
participate in substance abuse treatment as directed, and fail-
ing to participate in mental health treatment as directed.”
Echoing the statement it made before hearing any testimony,
the judge “adopt[ed] the factual findings of the violation
memorandum as my own.”
The court then turned to sentencing. The government
asked for 14 months of imprisonment, arguing that “until the
defendant is ready, willing, and able to admit that he has
some sort of problem, there’s no conditions that this Court can
put in place to make him take those actions.” It added, “we
do have to punish as well as protect the community.” Defense
counsel, in response, emphasized Jordan’s efforts to comply:
No. 19-2970 5
First, Jordan (or family members) called the testing facility
every day, including on June 4, the day of his missed drug
test, to see if he had to be tested that day. Second, Jordan had
never tested positive, despite tests occurring about three
times each month. Third, the violations were “technical,” as
evidenced by the fact that the supervisor of the assessment
facility could have but did not schedule an assessment during
an in-person meeting with Jordan. Counsel summarized:
I have a hard time placing all the accountability
on Mr. Jordan for those missed assessments, es-
pecially when he indicates that he took steps, he
attempted to complete the assessments when he
showed up for the drug tests, when he went to
Carle Clinic, and they were subsequently com-
pleted while he [was] in custody by Dr. Wolfe at
SIU.
After hearing these arguments, and preparing to discuss
new terms of supervised release, the court warned Jordan that
if he failed to object, the failure could result in “waiver.” The
court then sentenced Jordan to six months in prison followed
by 120 days of community confinement in a half-way house,
and after that 26 months of supervised release.
On appeal, Jordan asserts that the district court wrongly
revoked his term of supervised release and insufficiently jus-
tified the sentence of reimprisonment. He repeats that he did
not intend to miss drug testing because he called the testing
facility on June 4 and he also tried to get his assessments
scheduled. Citing Morrissey v. Brewer, 529 U.S. 694 (1972), and
United States v. Yancey, 827 F.2d 83, 89 (7th Cir. 1987), Jordan
argues that “[d]ue process requires a written statement as to
the evidence relied on and reasons for revoking” release, but
6 No. 19-2970
the district court did not supply that statement. The govern-
ment responds that more words were unnecessary because
the testimony and the violation memorandum, which the
court adopted, proved the violations. Moreover, it added, Jor-
dan’s testimony that he lacked an intent to violate was “im-
plausible.” Although Jordan has served his prison sentence,
he is still in his term of supervised release, so the appeal is not
moot. United States v. Raney, 797 F.3d 454, 461 n.6 (7th Cir.
2015).
Before delving into the merits, we pause briefly on the
standard of review. The government contends this court
should review for plain error. It maintains that because Jor-
dan said at the outset of the hearing that he did not object to
the probation officer’s memo, he has forfeited his challenge to
the court’s later adoption of the findings in the memo.
See United States v. Lee, 795 F.3d 682, 685 (7th Cir. 2015); Fed.
R. Crim. P. 52(b). We disagree. As Jordan points out, he asked
for and proceeded to a live hearing with contested testimony
on the issue of violation. Jordan therefore adequately in-
formed the court and the government that, although he ac-
cepted the filing of that memo, he challenged its allegations of
violations. That seems to be how the district court understood
his position. Near the end of the hearing, when the district
judge adopted the findings of that memo “as my own,” she
again invited Jordan to object. But that invitation was in the
context of the proposed conditions of supervised release, not
the findings of a violation. Moreover, a defendant is not re-
quired to take exceptions to rulings after a judge makes them.
Fed. R. Crim. P. 51(a). Thus, no forfeiture or waiver occurred
here.
No. 19-2970 7
Jordan’s core claim is that the district court failed to suffi-
ciently justify both the revocation and prison sentence. He in-
vokes the due process clause of the Fifth Amendment, but we
think this case fits better within “the supervisory power of an
appellate court to review proceedings of trial courts and to
reverse judgments of such courts which the appellate court
concludes were wrong.” Cupp v. Naughten, 414 U.S. 141, 146
(1973). This authority permits us to require sound procedures
that are not specifically commanded by the statutes or other
relevant provisions. Thomas v. Arn, 474 U.S. 140, 146–47 (1985);
Terry v. Spencer, 888 F.3d 890, 895 (7th Cir. 2018). Under our
supervisory authority, we see two flaws in the district court’s
procedures and decision.
First, the district court did not mention, let alone ade-
quately explain, its rejection of Jordan’s defense that he lacked
intent to violate the conditions of supervised release and had
made reasonable and good faith attempts to comply. Such an
explanation is required. United States v. Hollins, 847 F.3d 535,
539 (7th Cir 2017). The need to address the defense is particu-
larly important here because, before hearing a word of testi-
mony, the court told Jordan that it was adopting the findings
of violations from the probation officer’s memo. We do not
know why the court seemed to make findings about viola-
tions before the planned hearing on whether violations oc-
curred. But because it seemed to signal its view of the facts
before hearing any evidence, we think that after the court
heard the evidence, it needed to explain why that evidence
did not move the court from that earlier view. And it did not
do so here. We hasten to add that a revocation may have been
justified. We recognize that the testimony of offenders on su-
pervised release might not be credible, and we know that dis-
trict judges may hear a lot of creative excuses for failing to
8 No. 19-2970
comply with conditions of supervised release. But without an
evaluation of the defense, we cannot review whether the dis-
trict court’s rationale for rejecting it was permissible.
Second, the district court did not adequately explain its
decision to imprison Jordan again for six months. Sentences
must always conform to the “broad command” of the parsi-
mony principle, which requires that sentences be “‘sufficient,
but not greater than necessary to comply with’ the four iden-
tified purposes of sentencing: just punishment, deterrence,
protection of the public, and rehabilitation.” Dean v. United
States, 137 S. Ct. 1170, 1175 (2017), quoting 18 U.S.C. § 3553(a).
This principle is especially important in a case like this where
the alleged violations were not criminal, the defendant as-
serted a lack of intent, and there was evidence of reasonable
efforts and good faith, putting in question which of the pur-
poses of sentencing apply.
The Supreme Court has observed that prison is not neces-
sarily appropriate for every violation of a condition of release,
such as where, as the defendant asserts here, the defendant
made bona fide efforts to comply and does not obviously pose
a threat to society. Bearden v. Georgia, 461 U.S. 660, 668–70
(1983). “The congressional policy in providing for a term of
supervised release after incarceration is to improve the odds
of a successful transition from the prison to liberty.” Johnson
v. United States, 529 U.S. 694, 708–09 (2000). Sending a defend-
ant back to prison for a violation that occurs despite reasona-
ble and good faith efforts to comply may well undermine that
transition.
The district court did not address whether Jordan’s viola-
tions were willful, why his mitigation arguments were not
persuasive, and why prison was necessary. We have often
No. 19-2970 9
said in sentencing appeals that a district judge need not “be-
labor the obvious,” e.g., United States v. Sainz, 827 F.3d 602,
608 (7th Cir. 2016), but the reasons for sending Jordan back to
prison are not obvious to us on this record.
The government conceded correctly at oral argument that
the district court did not address Jordan’s mitigation argu-
ments—that, despite his good-faith efforts to comply daily,
through inadvertence and confusion he missed tests on only
two successive days and otherwise attended and passed every
other test. The government argues only that the district
court’s decision is nonetheless adequate because the facts
needed to support it are in the record and Jordan’s testimony
about his attempts to comply was not credible.
The problem is that we have no idea whether the court
found Jordan’s testimony incredible, why it deemed his de-
fense insufficient, or why a new six-month prison sentence
was needed to fulfill the factors in §§ 3583(e) and 3553(a).
See United States v. Boultinghouse, 784 F.3d 1163, 1177 (7th Cir.
2015) (court must provide explanation sufficient to enable ap-
pellate review). If the district court had reasons to give six
months of imprisonment, it needed to share those. If that had
happened, we would have reviewed them for an abuse of dis-
cretion, as is the standard for revocation of supervised release.
United States v. Musso, 643 F.3d 566, 570 (7th Cir. 2011).
We do not mean to imply that imprisonment may never be
the appropriate response to violations like those charged
here, missing a drug test and appointments for treatment. The
district court may have had in mind the notion that the assur-
ance of reimprisonment—even for a short time for intentional
or even careless violations—deters future violations. We un-
derstand that different judges have different philosophies in
10 No. 19-2970
balancing the factors under § 3553(a). But the district court
needed to say explicitly why it thought that six months in
prison was necessary for a defendant who had tested negative
on every test and committed no other violations.
The judgment revoking supervised release is REVERSED.