Revocation Proceedings: When It is Better to Say Something Than Nothing At All

United States v. Boutlinghouse | 14-2764
United States v. Downs | 14-3157

June 2015

In United States v. Boutlinghouse, 14-2764 and United States v. Downs, 14-3157, the Seventh Circuit considered various issues regarding revocation proceedings.

In Boutlinghouse, the Seventh Circuit reiterates that a sentencing court must provide reasons for its sentence in the context of a supervised release proceeding. Boutlinghouse struggled on supervised release, accumulating a potpourri of (unfortunately) all too familiar violations including drug use and additional criminal conduct. At the supervised release proceeding, the district court imposed a sentence of 24-months’ imprisonment. The district court said nothing about its reasons for the sentence imposed. On appeal, the government intimated that because the sentence was within the guideline range no explanation was needed.  Rejecting this position, the Seventh Circuit noted, “there is a distinction between a minimal explanation and no explanation at all.”

Making clear that a district court does not have to say much, but must say something, about its reasons for the sentence imposed, the Seventh Circuit stated: “When a district judge revokes a defendant’s supervised release and sentences him to a prison term, he must consider both the Guidelines policy statements that prescribe the penalties for supervised release violations, as well as the statutory sentencing factors set forth in 18 U.S.C. § 3553(a), as applicable to revocations of supervised release; and he must also say something that enables the appellate court to infer that he considered both sources of guidance. Otherwise, competent appellate review is impossible.” Because the remedy for such omissions is remand, when presented with a completely silent explanation for the basis of a revocation sentence, counsel may be well-advised to prompt the sentencing court for an explanation in the first instance.

In Downs, the Seventh Circuit’s interest in revocation sentencing procedures continues. The Court found reversible error in a probation revocation sentence because the district court failed to pronounce and consider the Guidelines’ range. The Court made clear that any revocation proceeding (like any initial sentence) must begin with an appropriate Guidelines calculation, and resulting consideration of that range, before the court imposes the actual sentence. Perhaps more importantly, the Court went on to emphasize that on remand, the district court is free to, and must reconsider all aspects of the sentence. The Court echoed its previously stated position that a criminal sentence must be considered in the gestalt, and not isolated pieces. Thus, on remand, the sentencing court must consider whether to tweak any or all aspects of the imposed sentence. Appellate counsel is well-advised to explain this risk-benefit to clients who are considering these type of appellate attacks on their sentences.