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United States v. Smith

United States Court of Appeals, Seventh Circuit

July 11, 2019

United States of America, Plaintiff-Appellee,
Thomas M. Smith, Defendant-Appellant.

          Argued May 28, 2019

          Appeal from the United States District Court for the Southern District of Illinois. No. 3:ll-cr-30013-DRH-l - David R. Herndon, Judge.

          Before Wood, Chief Judge, and Bauer and Easterbrook, Circuit Judges.


         Within three months of being placed on a 20-year term of supervised release, Thomas "Lizzie" Smith[1] violated the requirements of her supervision. The district court revoked Smith's supervised release, and sentenced her to two years' imprisonment without any further supervision to follow. Smith now appeals that order. For the reasons that follow, we affirm the district court's revocation sentence.

         I. BACKGROUND

         Smith pleaded guilty to one count of receipt of child pornography and was sentenced to 90 months of imprisonment, 20 years of supervised release, a $600 fine, and a $100 special assessment. Smith's term of supervised release began on November 20, 2017.

         On August 29, 2018, Smith's probation officer, Kevin Rayman, filed a petition for warrant or summons for offender under supervision, stating that Smith (1) failed to participate in sex offender treatment, (2) failed to participate in mental health treatment, (3) failed to comply with location monitoring, and (4) failed to make scheduled payments of fines.[2]

         The district court held a hearing on the petition on October 18, 2018. Rayman testified that he referred Smith to Alternatives Counseling in Glen Carbon for sex offender treatment. Smith quit the program after a few weeks, believing she did not need treatment. Rayman then referred Smith to Choices Counseling for sex offender treatment. Smith was discharged by Choices Counseling for reasons including noncompliant behavior, safety concerns, dishonesty about past behavior, and refusing to participate in polygraph examinations. Smith was also referred for mental health treatment, but missed multiple meetings.

         Rayman also testified that on January 26, 2018, as a result of this difficulty in establishing regular sex offender and mental health services, location monitoring and a nightly curfew were added to the conditions of Smith's supervised release. On February 4, 2018, Smith violated her curfew and left a four-minute long profanity-filled voice mail for Rayman, threatening to sue U.S. Probation and demanding to be taken off location monitoring. Rayman subsequently concluded that Smith was not a good candidate for continued supervision, because she was resistant to treatment, dishonest, and in denial about her child pornography conviction.

         The advisory Sentencing Guidelines imprisonment range was 3 to 9 months with a maximum of 2 years. The government sought a sentence of one year and one day due to Smith's dishonesty and refusal to cooperate. The district court referenced Smith's manipulative behavior, lies, and refusal to participate in treatment or follow the court's orders. It also discussed the seriousness of the child pornography offense, Smith's history, the need to protect the public, and the need to promote respect for the law. The court noted that "[t]his is an extraordinary case, extraordinary dissidence, extraordinary deliberate efforts to violate the Court's order, extraordinary in [Smith's] effort to avoid treatment." The court gave Smith a 24-month sentence and ordered that no supervised release would follow. Smith then filed her notice of appeal.

         II. ANALYSIS

         A violation of supervised release is "a breach of the trust placed in a defendant by the original sentencing court." United States v. McClanahan, 136 F.3d 1146, 1150 (7th Cir. 1998). A revocation sentence is "subject to review under the plainly unreasonable standard because no guideline establishes a mandatory range of such a sentence." Id. at 1149 (internal quotation marks omitted) (quoting United States v. Hale, 107 F.3d 526, 529 (7th Cir. 1997)). Chapter 7, Part B of the Sentencing Guidelines, which contains the advisory revocation sentence table, is a policy statement and "not a guideline, binding on the sentencing judge." United States v. Doss, 79 F.3d 76, 78 (7th Cir. 1996).

         Smith argues the 24-month sentence was unreasonable because the district court failed to treat her mental health problems as a mitigating factor. Smith also argues the district court failed to fully consider the factors ...

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