USA v. Keefer Jone
Filed opinion of the court by Judge Bauer. We affirm the district court s revocation of supervised release, and we vacate the sentence and remand for a full resentencing. Circuit Rule 36 shall apply on remand. William J. Bauer, Circuit Judge; Joel M. Flaum, Circuit Judge and David F. Hamilton, Circuit Judge. [6851606-1]  [16-1494]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:02‐cr‐20029‐HAB‐EIL‐1 — Harold A. Baker, Judge.
ARGUED NOVEMBER 29, 2016 — DECIDED JUNE 30, 2017
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. In July 2002, Appellant Keefer Jones
was convicted of possession of crack cocaine with intent to
distribute in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). In
2004, the district court sentenced Jones to 262 months’ impris‐
onment and eight years’ supervised release. The district court
imposed several conditions of supervised released, including
drug testing, mental health treatment, and sex offender
treatment. Jones appealed, but did not challenge the conditions
of supervised release. We affirmed. See United States v. Jones,
455 F.3d 800, 803–04 (7th Cir. 2006).
On November 25, 2014, Jones began serving his supervised
release, but over the following year, he did not comply with
several conditions of that release. In December 2015, Jones’
probation officer filed a petition to revoke his term of super‐
vised release. The probation officer alleged that Jones violated
four conditions. Specifically, that he: (1) failed to participate in
sex offender treatment; (2) failed to comply with mental health
treatment; (3) violated the Illinois Sex Offender Registration
Act (ISORA); and, (4) possessed a controlled substance.
On March 3, 2016, Jones admitted that he violated all four
conditions. With a Grade B violation and a criminal history
category of VI, Jones’ recommended Guidelines range was 21
to 27 months’ imprisonment. See U.S.S.G. §§ 7B1.1 and 7B1.4.
The government recommended a sentence of 27 months’
imprisonment, while defense counsel recommended a sentence
that did not involve imprisonment so that Jones could keep
his job. Without a discernable explanation, the district court
rejected both recommendations. Relying instead on the
probation officer’s recommendation, the district court sen‐
tenced Jones to the statutory maximum of 60 months’ impris‐
onment. This appeal followed.
On appeal, Jones raises two arguments: first, he contends
that he received ineffective assistance of counsel; second, he
argues that the district court committed several procedural
errors in adjudicating his sentence. For the following reasons,
we affirm the district court’s revocation of supervised release,
and we vacate his sentence and remand for resentencing.
A. Ineffective Assistance of Counsel Claim
First, Jones argues that his counsel was constitutionally
ineffective for advising him to admit to the four violations of
his conditions of supervised release. Specifically, Jones
contends that counsel should have challenged each violation
in various ways. As a preliminary matter, we must address
whether there is an underlying right to counsel in the proceed‐
ing for which Jones challenges his counsel’s performance. See
United States v. Yancey, 827 F.2d 83, 89 (7th Cir. 1987) (“There
can be no challenge to the adequacy of counsel unless there is
an underlying right to counsel in a particular proceeding.”).
The Sixth Amendment grants a defendant the right to the
assistance of counsel at all critical stages of a criminal prosecu‐
tion. Iowa v. Tovar, 541 U.S. 77, 80–81 (2004). But, a revocation
proceeding is not considered a criminal prosecution under the
Sixth Amendment. United States v. Boultinghouse, 784 F.3d 1163,
1171 (7th Cir. 2015). Therefore, a defendant “has no Sixth
Amendment right to counsel” in the context of a revocation
proceeding. United States v. Eskridge, 445 F.3d 930, 933 (7th Cir.
2006); see also Boultinghouse, 784 F.3d at 1171 (“[T]he Sixth
Amendment does not apply in a hearing convened to decide
whether a defendant’s supervised release should be revoked.”)
(citing United States v. Kelley, 446 F.3d 688, 690 (7th Cir. 2006));
see United States v. Lee, 795 F.3d 682, 685 (7th Cir. 2015) (ex‐
plaining that “the full panoply of rights that the Constitution
guarantees to criminal defendants does not extend” to revoca‐
However, the Fifth Amendment’s due process clause
accords a defendant certain basic procedural protections,
including a right to representation by counsel under certain
circumstances. Boultinghouse, 784 F.3d at 1171; see also Gagnon
v. Scarpelli, 411 U.S. 778, 786 (1973). This right presumptively
attaches when a defendant has a colorable claim that he has not
violated the conditions of release, or if he has “a substantial
case to make against revocation, notwithstanding any viola‐
tion, that may be difficult to develop or present.” Boultinghouse,
784 F.3d 1171. The issue now is whether Jones has presented
any claims to which the Fifth Amendment due process right of
counsel would attach.
For two of the violations, Jones challenges his counsel’s
failure to move for modification to remove the conditions that
required sex offender and mental health treatment pursuant to
18 U.S.C. § 3583(e)(2). However, this is neither a claim that he
has not violated the conditions of release, nor a case to make
against revocation, notwithstanding the violations. Instead,
Jones puts forth a claim that is contrary to our precedent. See
United States v. Neal, 810 F.3d 512, 518 (7th Cir. 2016) (noting
that a defendant properly utilizes § 3582(e)(2) to seek modifica‐
tion or clarification of a condition without first having to
violate the condition (citing Fed. R. Crim. P. 32.1, Advisory
Comm. Notes (1979))). Therefore, the Fifth Amendment due
process right to counsel would not attach for these two claims.
Third, Jones argues that his counsel should have challenged
the efficacy of his sweat patch that tested positive for cocaine
because the results may have been successfully challenged.1 In
other words, Jones is claiming that it is possible that he may
not have committed the violation. Not only is Jones’ claim
speculative, but also, on top of that, we generally consider
sweat patch results to be a reliable method of detecting the
presence of drugs. See United States v. Pierre, 47 F.3d 241, 243
(7th Cir. 1995); see also United States v. Meyer, 483 F.3d 865, 869
(8th Cir. 2007). Jones acknowledges this. For these reasons,
Jones’ claim cannot be deemed colorable. Accordingly, the
Fifth Amendment due process right to counsel would not
attach for this claim.
Fourth, Jones claims that his counsel should have argued
that ISORA did not require him to register a cellphone he used
regularly, but did not own. He claims that his daughter owned
the phone. We will assume without deciding that the Fifth
Amendment due process right to counsel attaches for this
In absence of other positions being argued, we will also
assume without deciding that the Strickland standard to the
right to effective assistance of counsel applies here. We have
previously assumed one can raise a Strickland claim based on
ineffective assistance in a revocation proceeding. See Eskridge,
445 F.3d at 932 (citing United States v. Goad, 44 F.3d 580, 586,
589 (7th Cir. 1995)). But as Eskridge noted, that was “merely an
Jones tested positive for cocaine on October 20, 2015, and he also failed to
report for urine testing on the following dates in 2015: March 19, July 8,
September 23, September 29, October 2, and December 22.
To establish ineffective assistance of counsel, a defendant
must show both deficient performance and prejudice. Strick‐
land v. Washington, 466 U.S. 668, 687 (1984).2 To demonstrate
that counsel’s performance was deficient, a defendant must
show his counsel’s performance “fell below an objective
standard of reasonableness.” Id. at 688. With a record that
is silent on counsel’s strategic motives, we give “every
indulgence … to the possibility that a seeming lapse or error
by defense counsel was in fact a tactical move, flawed only
in hindsight.” United States v. Recendiz, 557 F.3d 511, 532 (7th
Cir. 2009) (citation omitted). Because we ultimately conclude
that Jones cannot establish deficient performance, we need not
Jones’ counsel had good reason to omit the challenge to the
ISORA violation. First, Jones initially told his probation officer
that the phone “belonged to him.” He later changed his story
and said that it belonged to his daughter. In addition, it was
not unreasonable for Jones’ counsel to forgo strained statutory
interpretation arguments and instead to argue for leniency.
This approach was not objectively unreasonable, especially in
light of our deferential review. Therefore, Jones’ argument
B. Procedural Sentencing Error
Second, Jones contends that the district court committed a
procedural error in that it provided an inadequate explanation
We need not decide whether or how the Strickland standard might
change in the context of a revocation proceeding.
of the sentence. The government agrees that the district court’s
explanation was inadequate.
We review challenges to the sentence imposed in a revoca‐
tion proceeding under a “highly deferential” standard. United
States v. Hollins, 847 F.3d 535, 639 (7th Cir. 2017) (citation
omitted). We will uphold the sentence as long as it is not
“plainly unreasonable.” Boultinghouse, 784 F.3d at 1177 (citation
omitted). The district court must consider the advisory policy
statements in U.S.S.G. Chapter 7, Part B, and consider the
“factors set forth in 18 U.S.C. § 3553(a), to the extent they apply
to revocations.” Hollins, 847 F.3d at 539; see also 18 U.S.C.
§ 3583(e). The district court must provide some explanation of
its decision to allow a reviewing court to conduct a meaningful
review. Hollins, 847 F.3d at 539. The further the sentence
departs from the Sentencing Guidelines range, the more
necessary it is that the district court details its justification.
United States v. Jones, 774 F.3d 399, 405 (7th Cir. 2014) (citations
Based on the sentencing transcript, we are unable to
provide a meaningful review. The district court did not take
into account the Guidelines policy statements, nor did it
mention the applicable 18 U.S.C. § 3553(a) sentencing factors
in a discernable manner. Moreover, the district court also did
not provide any explanation, let alone a detailed justification,
for the substantial upward departure from the Sentencing
Guidelines range. Jones’ Guidelines range was 21 to 27 months’
imprisonment, but the district court sentenced him to the
statutory maximum of 60 months’ imprisonment. The district
court did mention that it found the reasons advanced by the
Probation Service were compelling and persuasive. However,
we do not know which reasons the district court found
compelling and persuasive. Lastly, the district court did not
explain why it rejected both the government’s and Jones’
Because we cannot determine the district court’s rationale,
we cannot provide a meaningful review of its decision.
Therefore, we remand for resentencing.
We affirm the district court’s revocation of supervised
release, and we vacate the sentence and remand for a full
resentencing. Circuit Rule 36 shall apply on remand.
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