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United States v. White

United States Court of Appeals, Seventh Circuit

August 22, 2017

United States of America, Plaintiff-Appellee,
James Herbert White, Defendant-Appellant.

          Argued August 8, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 15 CR 00026-1 - Elaine E. Bucklo, Judge.

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

          Bauer, Circuit Judge.

         While 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.

         I. Background

         In 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.

         After 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.

         The 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.

         About 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.

         The 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.

         The 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 ... ."

         There 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 evidence.

         As for 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 ...

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