United States of America v. Charles W. Robertson

In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3543
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES W. ROBERTSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:93CR40045-001-JPG—J. Phil Gilbert, Judge.
SUBMITTED JULY 20, 2011—DECIDED AUGUST 15, 2011
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. This appeal challenges the deci-
sion of the district judge, upon revoking the defendant’s
supervised release, to sentence him to a term of reimpris-
onment above the range recommended by the Sen-
tencing Commission.
In 1993 the defendant was convicted of growing 228
marijuana plants and was sentenced to 120 months in
prison and 8 years of supervised release. In Septem-

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2 No. 10-3543
ber 2009, just days before his term of supervised release
was scheduled to end, police arrested him while he
was tending 52 large marijuana plants. The government
filed a petition to revoke his supervised release. He
admitted the petition’s allegations and later pleaded
guilty to a new charge of growing marijuana. The dis-
trict judge sentenced him to 30 months in prison on the
new charge and, consecutive to that term, 34 months as
punishment for violation of the terms of supervised
release, minus 4 months for time that he had served
in a related state case; so the length of the sentence
actually imposed was 60 months.
The defendant’s only challenge on appeal is to the
length of the term of reimprisonment. We consider
whether the district judge failed to explain why this
is anything other than a mine-run revocation case for
which the term of reimprisonment recommended in
the Sentencing Guidelines would be sufficient punish-
ment. The recommended term is only 12 to 18 months,
U.S.S.G. § 7B1.4, though the statutory maximum is three
years. 18 U.S.C. § 3583(e)(3); see United States v. Flagg,
481 F.3d 946, 949 (7th Cir. 2007); United States v. McKinney,
520 F.3d 425, 427 (5th Cir. 2008).
The judge didn’t give a reason for the 34-month term,
and made just four, brief remarks that might supply
clues to his thinking. The first is that he was “baffled”
that the defendant would continue growing marijuana
after spending eight years in prison for that crime.
The second remark, which followed immediately and
merely repeated the first in different words was: “why did

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No. 10-3543 3
you even consider doing this again?” The defendant
replied that he had grown marijuana because “he just
liked the way the plant looked” and he “liked to smoke
it,” whereupon the judge asked him sarcastically
whether he had “ever thought about growing gardenias
or something legal versus growing marijuana” and
added (this was his fourth remark) “you could have
grown roses.” Without further explanation the judge
stated: “with respect to the revocation, the Court is
going to sentence you to 34 months.”
Appellate review of a sentence for violating the terms
of supervised release is highly deferential—we have
suggested that it might be comparable to “the narrowest
judicial review of judgments we know,” namely judi-
cial review of sanctions imposed by prison disciplinary
boards. United States v. Kizeart, 505 F.3d 672, 675 (7th
Cir. 2007). We explained that “the Sentencing Commis-
sion’s decision not to issue [formal] Guidelines implies
that the sentencing court should have more than usual
flexibility in sentencing for violations of conditions of
supervised release; and the maximum sentence is only
five years, and the shorter the sentence, and hence the
less there is at stake, the fewer the layers of judicial
review necessary to satisfy the requirements of due
process of law.” Id. (citations omitted). The Guidelines
do recommend, as we noted, a sentencing range for
violations of supervised release, but these recommenda-
tions are made in what the Commission calls “policy
statements,” which are merely “advisory” and hence “non-
binding.” United States v. Carter, 408 F.3d 852, 854 (7th
Cir. 2005); United States v. Robertson, 537 F.3d 859, 861

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4 No. 10-3543
(8th Cir. 2008); United States v. Crudup, 461 F.3d 433, 439
(4th Cir. 2006). True, under the regime of Booker, all
the Sentencing Guidelines now are non-binding, but
presumably the ones the Sentencing Commission made
non-binding even before Booker are intended to be
given even less consideration by sentencing judges.
But less is not zero. Whatever the precise standard of
review, the sentencing judge must consider the statutory
sentencing factors, 18 U.S.C. § 3553(a)—and, the cases
say, the policy statements as well, United States v. Flagg,
supra, 481 F.3d at 948; United States v. Steele, 603 F.3d
803, 808 (10th Cir. 2010); United States v. McKinney, supra,
520 F.3d at 427-28—and must, moreover, say something
that enables the appellate court to infer that he con-
sidered both sources of guidance. United States v. Neal,
512 F.3d 427, 438-39 (7th Cir. 2008); United States v. Penn,
601 F.3d 1007, 1011 (10th Cir. 2010); United States v.
Polihonki, 543 F.3d 318, 323-24 (6th Cir. 2008). Otherwise,
competent appellate review is impossible; it would be
like trying to review for an abuse of discretion without
knowing whether the judge was attempting to exercise
discretion. See, e.g., United States v. Mittelstadt, 969 F.2d
335, 336 (7th Cir. 1992).
In the present case the judge didn’t say enough to
indicate that he considered either the statutory sen-
tencing factors or the policy statement. Not that he had
to cite chapter and verse. But he didn’t even say that
he disagreed with the Sentencing Commission’s policy
statement on punishment for violations of supervised
release or that he feared that a term shorter than

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No. 10-3543 5
60 months would fail to deter the defendant from
growing marijuana after his release from prison. He
also said nothing in response to the defendant’s argu-
ment that the statutory sentencing factors favored a
lighter sentence because he was 59 years old, had
served “99.8%” of his term of supervised release, and
had been gainfully employed lawfully throughout that
eight-year period. Maybe the argument was too weak
to merit discussion, but the judge didn’t say that either.
We cannot brush off the appeal on the ground that
of course the district judge knows the statutory sen-
tencing factors and the relevant Guideline provisions
and so he must have had a good reason for imposing
a sentence almost twice as long as the maximum rec-
ommended by the Sentencing Commission (34 months
versus 18 months). If that response to his appeal were
proper, a judge would never have to give a reason for a
sentence that was within the sentencing range set by
Congress. Anyway what a busy judge knows is not
always present to his mind. The Supreme Court has told
us to “ensure that the district court committed no sig-
nificant procedural error, such as . . . failing to ade-
quately explain the chosen sentence—including an expla-
nation for any deviation from the Guidelines range.” Gall
v. United States, 552 U.S. 38, 51 (2007). “Where the judge
imposes a sentence outside the Guidelines, the judge
will explain why he has done so.” Rita v. United States,
551 U.S. 338, 357 (2007). And although the Guidelines
range applicable to this case is merely “recommended,”
the cases we cited earlier say—and say after Booker—
that the sentencing judge should give a reason, however

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6 No. 10-3543
brief, for ignoring such recommendations, which the
judge in this case did not do.
So just as in United States v. Thompson, 595 F.3d 544, 547-
48 (4th Cir. 2010), a case nearly identical to this one, we
are obliged to vacate the sentence and remand for
resentencing.
VACATED AND REMANDED.
8-15-11

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