August 8, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 15 CR 00026-1 -
Elaine E. Bucklo, Judge.
Wood, Chief Judge, and Bauer and Easterbrook, Circuit Judges.
on supervised release following 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 sentencing guidelines. White argues that
this term of reimprisonment is plainly unreasonable because,
he says, the prosecutor and probation officer made inaccurate
statements during the revocation hearing. We acknowledge that
the probation officer conducted himself inappropriately, but
we are not persuaded that his misguided advocacy affected the
outcome of the proceeding. White's new prison term is
reasonable, and we thus affirm the judgment.
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
offender for 10 years. But in 2009 he failed to update his
registration 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
committing additional crimes, obtain his probation
officer's approval before leaving the judicial district,
and participate in sex-offender evaluation and treatment if
directed by the probation officer.
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 prescribed
medications. Underlying this request was a report from
White's probation officer explaining that White had
"demonstrated difficulty regulating his emotions and
became explosive" during a meeting with a
psychosexual-treatment provider. In that written report the
probation officer 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.
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 intervention
was necessary. White then requested that his conditions of
supervised release be modified to allow unsupervised contact
with his grandchildren, and the court obliged.
three months later, the government moved to revoke
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 ongoing criminal
investigation into allegations of robbery and assault 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 probation officer thus recommended 24 months.
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
reasonable and that the term should be imposed consecutively
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 ... everything 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 faithfully 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 imprisonment 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 exploitation 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 substantiate its version
of events, and the presentence report from the 2011
prosecution is not part of the record.
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
minor." 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 minor. ... You can't consent
legally. It's a crime." After a terse exchange
between the probation officer and defense counsel, the court
ended the debate by stating, "That's not something
that's, I think, ever in any way before me ... ."
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
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, counsel
explained, White had submitted to the psychological
examination when it was ordered, and the ...