United States of America v. Devin Dawson

Chicago, IL - Criminal defense lawyer represented defendant with a

conspiring to transport stolen property in interstate commerce charge. He also violated the conditions of his supervised release after his release from prison by possessing a loaded, semiautomatic firearm.

Dawson received his original prison sentence after he pled

guilty in the Northern District of Iowa to conspiring to

transport stolen property in interstate commerce, in violation

of 18 U.S.C. §§ 371 and 2314. This charge arose from Dawson's

role in a shoplifting scheme that targeted hardware and

home-improvement stores throughout the Midwest. For his

role in the scheme, Dawson received 18 months of prison followed by three years of supervised release. The sentencing

judge ordered Dawson to pay $12,451.52 in restitution to the

stores victimized by the shoplifting spree. Dawson got out of

prison and began supervised release in July 2018. In November 2018, the Northern District of Illinois assumed jurisdiction

over Dawson's supervised release.

A. Supervised Release Violations

Less than a year after his release from prison, Dawson's

probation officer asked the district court to revoke Dawson's

supervised release because Dawson had violated several of its

conditions. The most serious violation was possession of a

firearm. Police officers had stopped Dawson and his brother

for traffic violations. After making the stop, but before exiting

the squad car, the officers saw Dawson—who was sitting in

the front passenger seat—bend forward out of sight and then

No. 20-1233 3

reappear. When the officers searched the car, they found a

loaded 9mm semi-automatic blue steel Glock Model 19 with

a 30-round magazine under Dawson's seat. The officers arrested Dawson and he was charged in state court with unlawful use of a weapon and aggravated unlawful use of a

weapon. He was later released to home confinement on electronic monitoring. As for the other violations: one was using

controlled substances and failing to submit to periodic drug

testing. Another was failing to tell probation that he had received a ticket for running a stop sign and driving without a

license. And the last was failing to make restitution payments.

A few months later, probation notified the court of a fifth

violation, again stemming from a traffic stop. This time, Dawson had failed to produce a license or proof of insurance and

had given the investigating officer his brother's name and

date of birth. The lie did not hold up; Dawson soon confessed

his real name and the officer learned that he was driving on a

suspended license. The officer searched the car and found an

electronic-monitoring device for home confinement in the

trunk. The device had been altered to include a battery-based

power supply. After Dawson admitted that he was on home

confinement, the officer arrested him. Dawson faced additional state criminal charges for this conduct.

B. Preliminary Revocation Hearing

The district court held two hearings on the revocation of

Dawson's supervised release. The first took place on December 4, 2019. At this hearing, the government told the court that

the parties had agreed that the government would rely on police reports alone to prove the firearm violation. Dawson,

however, insisted that the parties had reached no such agreement. After noting the apparent misunderstanding between

4 No. 20-1233

the parties, the court addressed the government as to how it

wished to proceed on the firearm violation:

[W]hat the government has to do ... is to decide: Is a

violation of a person on supervised release to the Federal Court, based upon the allegation that he was in

possession of a loaded 9 millimeter semiautomatic

Glock firearm while he was on supervision sufficiently

serious for the government to want to proceed on a violation?

Because I will tell you what happens in State Court,

is they have 500 of these a day and they do literally

nothing. In fact, the last time I had this very same issue

before me, the defendant chose to admit the violation,

I entered a disposition which included more jail time,

and on that basis the State Court dismissed the actual

allegations of the State criminal proceeding.

So if there is going to be any real sanction for this,

in my opinion it will be here, not in the overburdened,

overloaded State Courts that have insufficient resources or manpower.

Given that Dawson did not agree to proceeding by way of

proffer, the court gave the government more time to consider

whether to call witnesses to prove the firearm violation.

C. Final Revocation Hearing

The court held the second and final revocation hearing on

January 29, 2020. To prove the firearm violation, the government called one of the officers who stopped Dawson and his

brother to testify about finding the firearm under Dawson's

seat. For his part, Dawson called another officer who was involved in the stop to testify about his version of the events.

No. 20-1233 5

Relying on a supposed contradiction between the officers' testimony, Dawson argued that the government had not proved

that he, rather than his brother, possessed the firearm. The

court found by a preponderance of the evidence that Dawson

had possessed the firearm and thereby violated his supervised release conditions. Dawson did not contest the other

four violations, though he offered context for two of them. On

the controlled substances violation, Dawson argued that his

missed drug tests were not evidence of drug use because

some preceded his release from custody and the rest were surrounded by negative tests. On the restitution violation, Dawson submitted a sworn statement explaining his limited ability to pay. The court found that the government had proved

each of the violations.

The court moved next to the appropriate sentence for the

violations. The advisory Guidelines range was 6 to 12 months

in prison. The statutory maximum was 24 months. Dawson's

counsel requested nine months. He stressed the positive

aspects of Dawson's life, including that Dawson was working

long hours and taking care of his niece after his brother's

passing, and that he was expecting a child with his girlfriend.

Dawson's counsel reminded the court that the point of a

revocation sentence is to sanction a defendant's breach of

trust—not to punish the defendant for the violative conduct.

The government and probation recommended 12 months.

The government agreed that the court should sanction

Dawson's breach of trust and argued that Dawson's

violations—in particular, his firearm and electronicmonitoring violations—displayed a complete disregard for

court orders and the conditions of supervised release. Before

imposing its sentence, the court asked Dawson's counsel a

follow-up question: "As a breach of trust, do you interpret that

6 No. 20-1233

to mean that I should not take into account what the

defendant actually did? That, for example, missing a urine

drop should have the same effect as shooting someone in

terms of the violation?” Defense counsel responded, "No,

Judge. I'm not saying that.”

The court revoked Dawson's supervised release and sentenced him to 24 months' imprisonment with no supervised

release to follow. In explaining the sentence, the court focused

first on the electronic-monitoring violation:

I find that the defendant has definitely shown a lack of

respect for the conditions of supervised release. He has

violated them in various ways and shows a clear lack

of respect for court orders in general when he violates

an electronic monitoring order, is found driving

around [in] the middle of the night with a hijacked

electronic surveillance gadget attached to a battery.

The court turned next to Dawson's failure to make restitution

payments despite his ability to pay at least some amount.

"The Court is mindful that it's not easy, that it is a hardship

to have to use some of your hard-earned money to pay the

restitution, but it was part of the Court's order and should

have been respected. It was not.” As for Dawson's missed

drug tests, the court considered them a "technical violation”

given Dawson's explanation for them, which probation had

agreed with.

The main problem, in the court's view, was the firearm violation. It explained why it considered this violation particularly "egregious”:

In a city where innocent people are shot every day,

where you turn on the news or pick up the newspaper

No. 20-1233 7

and you find another horrible weekend where so many

dead and so many injured, for this defendant to be in

possession of a killing machine like a 9mm semiautomatic Glock with an extended cartridge is beyond the

realm. It's just beyond anything that I can understand.

And to do so while he's on the Court's supervision is

not only an affront to the Court, but it's a danger to the

community. It shows that he lacks any real interest in

rehabilitation. I just find that that is too dangerous of

conduct for the Court to do anything but impose a significant custodial sentence, and I find that the guidelines in this case do not accurately reflect the seriousness of this offense.

I'm going to enter a sentence above the guidelines

for that reason. I stated on prior occasions why I feel

the guidelines with respect to this particular geographic location, Chicago, and the wave of gun violence that we are experiencing for several years now,

why the guidelines simply do not contemplate how serious such an offense is in this particular geographic

location at this particular point in time.

The court made its sentence consecutive to any forthcoming sentence in the pending state-court case against Dawson.

Dawson's counsel urged the court to reconsider and make the

sentence concurrent. The court rejected that request, commenting, "I just can't envision—short of actually shooting

someone, I can't envision what your client is doing driving

around in a car with a loaded 9mm semiautomatic gun with

an extended clip except to do something really violent.” "He

had no business doing that, none.”

Dawson appeals his 24-month sentence.

8 No. 20-1233

II. Discussion

Dawson's primary contention on appeal is that the district

court improperly sentenced him as punishment for the firearm violation when it should have focused on his breach of

the court's trust. He also maintains that the district court ignored his mitigation arguments, failed to adequately consider

the applicable § 3553(a) sentencing factors, and instead

weighed an impermissible factor: whether Dawson was going

to receive a sentence on the state-court firearm charge. Finally,

even putting these procedural errors to the side, Dawson says

the district court's 24-month sentence was plainly unreasonable because it doubled the recommendations of probation and

the government, which were already at the high end of the

advisory Guidelines range.

A. Breach of Trust

We review claims of procedural error de novo. United

States v. Karst, 948 F.3d 856, 864 (7th Cir. 2020).

A district court may—and sometimes must—revoke a defendant's supervised release and impose a fresh term of imprisonment if it finds by a preponderance of the evidence that

the defendant has violated the conditions of supervised release. 18 U.S.C. § 3583(e)(3), (g). Here, Dawson's firearm violation mandated revocation of his supervised release, see

§ 3583(g), but the court had discretion over what sentence to

impose, see § 3583(e)(3). The United States Sentencing Commission has issued policy statements that recommend sentencing ranges for supervised release violations. United States

Sentencing Commission, Guidelines Manual ch. 7 (Nov.

2018). These policy statements "are non-binding and meant to

inform rather than cabin the exercise of the judge's

No. 20-1233 9

discretion.” United States v. Raney, 842 F.3d 1041, 1044 (7th Cir.

2016) (internal quotation marks and citation omitted). In this

case, the recommended range was 6 to 12 months' imprisonment. Revocation sentences are also subject to statutory caps.

These statutory caps depend on the seriousness of the original

crime of conviction—not the seriousness of the supervised release violation. See id.; United States v. McClanahan, 136 F.3d

1146, 1150 (7th Cir. 1998). The statutory cap in this case was

24 months. 18 U.S.C. § 3583(e)(3).

These statutory caps reflect the unique purpose of revocation sentences. The point is not to punish a defendant's violation as if it were a new federal crime, but rather to sanction

the defendant's breach of the court's trust—that is, his or her

failure to comply with court-ordered conditions arising from

the original conviction. United States v. Haymond, 139 S. Ct.

2369, 2386 (2019) (Breyer, J., concurring); see United States v.

Huusko, 275 F.3d 600, 603 (7th Cir. 2001). The Sentencing Commission's policy statements on revocation sentences endorse

this "breach of trust” theory of punishment. The Sentencing

Commission instructs courts to "sanction primarily the defendant's breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and

the criminal history of the violator.” United States Sentencing

Commission, Guidelines Manual ch. 7, pt. A, intro. 3(b) (Nov.

2018).

This is not to say, however, that a district court must

ignore the character of a defendant's violations when

fashioning a revocation sentence. To the contrary, a more

serious violation likely reflects a more serious breach of trust.

We made this point in McClanahan. Like Dawson,

McClanahan argued that the district court had impermissibly

10 No. 20-1233

configured his 24-month sentence as punishment for his

supervised release violations. McClanahan, 136 F.3d at 1148–

49. We found his argument "baseless” because the record

showed that the court was consciously operating within the

breach-of-trust framework. Id. at 1151. "Rather than reflecting

a misperception by the court of the Commission's operative

theory of punishment, McClanahan's sentence properly

measure[d] the contempt he exhibited for the terms and

conditions of his release.” Id.; accord Guidelines Manual ch. 7,

pt. A, intro. 3(b) (contemplating that "the nature of the

conduct leading to the revocation would be considered in

measuring the extent of the breach of trust”).

Indeed, Congress requires district courts to consider the nature of a defendant's supervised release violation to at least

some extent. Before revoking a term of supervised release and

imposing a new sentence, a district court must consider the

sentencing factors set forth in 18 U.S.C. §§ 3553(a)(1), (a)(2)(B),

(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). See § 3583(e).

These factors are the nature and circumstances of the offense;

the defendant's history and characteristics; the need to deter

criminal conduct, protect the public, and provide the defendant with training, medical care, or other correctional treatment; sentencing recommendations and policy statements

from the Sentencing Commission; the need to avoid unwarranted sentencing disparities among similar defendants; and

the need for victim restitution. § 3553(a); United States v.

Carter, 408 F.3d 852, 854 (7th Cir. 2005).

Although § 3583(e) does not tell courts to consider the sentencing factors listed in § 3553(a)(2)(A)—the need for the sentence to reflect the seriousness of the offense, promote respect

for the law, and provide just punishment—we have held that

No. 20-1233 11

district courts may consider those factors too, as long as they

focus primarily on the factors that § 3583(e) does mention.

United States v. Clay, 752 F.3d 1106, 1108 (7th Cir. 2014). As we

observed in Clay, moreover, there is "significant overlap” between the factors listed in § 3583(e) and the factors in

§ 3553(a)(2)(A): "the 'nature' of a violation includes its 'seriousness,' and 'promot[ing] respect for the law' is a means of

deterring future violations.” Id. at 1108–09 (alteration in original) (citations omitted).

In this case, we have little trouble concluding that the district court stayed in its lane and sentenced Dawson primarily

for his breach of trust. From start to finish, the court anchored

its sentencing explanation in Dawson's breach of the court's

trust. It began by explaining that Dawson had "shown lack of

respect for the conditions of supervised release” and court orders by "driving around [in] the middle of the night with a

hijacked electronic surveillance gadget attached to a battery.”

It carried that theme forward when discussing his failure to

make restitution payments. "[Restitution] was part of the

Court's order and should have been respected. It was not.”

The court used similar language when discussing the firearm

violation, even if it also focused heavily on the seriousness of

the violation and the threat to public safety. The court described Dawson's "possession of a killing machine like a 9mm

semiautomatic Glock with an extended cartridge” while on

supervised release as both an "affront to the court” and "a

danger to the community.” The violation "shows that [Dawson] lacks any real interest in rehabilitation.” In the end, it was

"too dangerous of conduct for the Court to do anything but

impose a significant custodial sentence,” and the court "enter[ed] a sentence above the guidelines for that reason.”

12 No. 20-1233

Read as a whole, the sentencing transcript shows that the

court properly considered the seriousness and dangerousness

of the firearm violation within a breach-of-trust framework.

There is no doubt that the court knew of the legal authority

that informed its discretion. Both parties discussed the

breach-of-trust theory at sentencing and the court asked

Dawson a poignant follow-up question about it. Breach-oftrust language pervaded the court's sentencing explanation.

As in McClanahan, the court's consideration of the seriousness

of Dawson's firearm violation did not "reflect[] a

misperception by the court of the Commission's operative

theory of punishment”—instead, it "properly measure[d] the

contempt he exhibited for the terms and conditions of his

release.” McClanahan, 136 F.3d at 1151. After all, the court had

express congressional authorization to base its sentence on

the nature of Dawson's violations and the need to protect the

public from his future crimes. 18 U.S.C. § 3583(e); § 3553(a)(1),

(a)(2)(C).

Dawson relies heavily on the district court's remarks at the

preliminary revocation hearing. To be sure, the court suggested at that hearing that its potential punishment for the

firearm violation might come in lieu of any state-court punishment in the pending firearm case. But the court made those

comments nearly two months before imposing its sentence, in

the context of asking the government whether it wished to

proceed with proving the firearm violation. Those remote

comments, though perhaps ill-advised, did not somehow infect the court's eventual sentence with error, especially when

the court repeatedly displayed its knowledge of the breachof-trust theory of punishment while sentencing Dawson.

Dawson also criticizes the court's factual finding at the final

revocation hearing that he possessed the firearm. But he does

No. 20-1233 13

not argue that the finding was clear error. Absent clear error,

we will not touch the district court's factual findings. United

States v. Falls, 960 F.3d 442, 445 (7th Cir. 2020).

At the end of the day, the line between punishing a defendant's breach of trust and punishing a violation on its own

terms is not as clear as Dawson wants it to be. A serious violation correlates to a severe breach of trust, so a court should

consider the nature of a violation when choosing its revocation sentence. See McClanahan, 136 F.3d at 1151. Doing so also

comports with Congress's design for revocation sentences.

On one hand, Congress told courts to consider various factors,

including the nature and circumstances of a violation and the

corresponding need to protect the public, before choosing a

sentence. 18 U.S.C. § 3583(e); § 3553(a)(1), (a)(2)(B). At the

same time, Congress set relatively low statutory caps—tied to

the original crime of conviction—to ensure that the penalty

for a supervised release violation would remain proportionate to the crime that landed the defendant in prison in the first

place. § 3583(e)(3). Here, the district court knew of this legal

framework and operated firmly within it. There was no error.

B. Sentencing Factors and Mitigation Arguments

Dawson's next contention is that the district court ignored

his mitigation arguments and the pertinent § 3553(a) factors

by focusing almost exclusively on the punishment (or lack

thereof) that he would receive in the pending state-court case.

We review de novo whether the court procedurally erred by

failing to consider the relevant sentencing factors and mitigation arguments. See Karst, 948 F.3d at 864.

As we have said, § 3583(e)(3) requires the district court to

consider certain § 3553(a) factors before revoking a

14 No. 20-1233

defendant's supervised release and imposing a new sentence.

A district court "need not make factual findings on the record

for each factor,” but "the record should reveal that the court

gave consideration to those factors.” Carter, 408 F.3d at 854.

"We require only that the district court 'say something that enables [us] to infer that [it] considered' the U.S. Sentencing

Guidelines policy statements and the 18 U.S.C. §§ 3553(a) &

3583(e) sentencing factors.” Raney, 842 F.3d at 1043 (emphasis

and alterations in original) (quoting United States v. Ford, 798

F.3d 655, 663 (7th Cir. 2015)). "The district court 'need not consider the Section 3553 factors in check-list form.'” Id. (quoting

Ford, 798 F.3d at 663).

The record reflects that the district court adequately

examined the relevant sentencing factors. The court

considered the "nature and circumstances of the offense”

when discussing the circumstances surrounding Dawson's

drug-testing, electronic-monitoring, and firearm violations. §

3553(a)(1). The court considered Dawson's "history and

characteristics” and the need for victim restitution when

discussing Dawson's financial situation and failure to make

restitution payments. § 3553(a)(1), (7). The court considered

the need to protect the public from Dawson's future crimes,

remarking on the "danger to the community” posed by the

firearm violation. § 3553(a)(2)(C). The court also considered

the Sentencing Commission's sentencing recommendations

and policy statements, as shown by its follow-up question

about Dawson's breach-of-trust argument and its reasoned

decision to depart from the Guidelines range. § 3553(a)(4)–(5).

Finally, as Dawson recognizes, the court considered (but did

not place too much weight on) the need for the sentence "to

reflect the seriousness of the offense, to promote respect for

the law, and to provide just punishment for the offense.” §

No. 20-1233 15

3553(a)(2)(A); Clay, 752 F.3d at 1108. We are satisfied that the

court weighed the relevant factors. The court was not required

to walk through each factor in check-list form. Raney, 842 F.3d

at 1043.

As for mitigation, while the Seventh Circuit has "long held

that district courts are required to directly address a defendant's principal arguments in mitigation that have legal merit,”

it has "never explicitly held that courts have the same strict

duty at revocation proceedings, which are more informal than

initial sentencing hearings.” United States v. Williams, 887 F.3d

326, 328 (7th Cir. 2018). Rather, a defendant is entitled to present mitigation arguments at a revocation hearing, and district courts must approach revocation hearings "with an open

mind and consider the evidence and arguments presented before imposing punishment.” Id. (quoting United States v. Hollins, 847 F.3d 535, 539 (7th Cir. 2017)).

The district court adequately considered Dawson's mitigation arguments. At the final revocation hearing, Dawson's

counsel asked the court to consider the "positive” aspects of

Dawson's life: he was working long hours to provide for his

girlfriend and his niece, and he and his girlfriend were expecting a child together. The court implicitly acknowledged Dawson's mitigation arguments when commenting that it was a

"hardship” for Dawson to use his "hard-earned money” to

pay restitution. And nothing in the record suggests that the

court did not approach Dawson's arguments with an open

mind and consider them before imposing its sentence. Indeed,

the court seemingly changed its mind about Dawson's missed

drug tests, concluding in the end that they were a "technical

violation.” So, it seems the court had an open mind before

16 No. 20-1233

imposing its sentence. Nothing more was required. Williams,

887 F.3d at 328.

Finally, there is no basis for Dawson's contention that the

court based its sentence on its predictions about what would

happen in the pending state-court case. The court commented

on the potential state-court punishment two months before

sentencing Dawson, while questioning the government about

whether it was going to present testimony on the firearm violation. The court did not repeat those comments at the final

revocation hearing. We do not interpret the court's comments

as part of its sentencing explanation.

C. Reasonableness of the Sentence

Procedural issues aside, Dawson attacks his sentence on

the merits. Dawson repurposes many of his earlier arguments

to explain why the sentence was plainly unreasonable. His

only new argument is that the court improperly disregarded

the sentencing recommendations of the government and probation.

The standard for reviewing revocation sentences "presents an uphill battle” for Dawson. United States v. DuPriest,

794 F.3d 881, 884 (7th Cir. 2015). The Court's "review for substantive reasonableness is 'highly deferential' and we will reverse only if the sentence is 'plainly unreasonable.'” United

States v. Durham, 967 F.3d 575, 580 (7th Cir. 2020) (quoting

United States v. Boultinghouse, 784 F.3d 1163, 1177 (7th Cir.

2015)). "District courts have 'more than the usual flexibility in

this context.'” Id. (quoting United States v. Berry, 583 F.3d 1032,

1034 (7th Cir. 2009)).

Judged against this permissive standard of review, the district court's 24-month sentence was not plainly unreasonable.

No. 20-1233 17

The Sentencing Commission's policy statements on revocation sentences are non-binding. Raney, 842 F.3d at 1044. Their

purpose is to inform, rather than cabin, a judge's discretion.

Id. Here, the court determined that the recommended range

of 6 to 12 months did not reflect the seriousness of the firearm

violation. Against the backdrop of the "wave of gun violence”

in Chicago, the court described Dawson's possession of a

loaded semiautomatic handgun with an extended magazine

as an "egregious” violation that was "beyond the realm.” The

court's judgment that the severity of the firearm violation—

on top of Dawson's other four violations, including his tampering with an electronic-monitoring device—justified an

above-Guidelines sentence was not plainly unreasonable. In

United States v. Salinas, we upheld a 24-month sentence, which

far exceeded the Guidelines range of 3 to 9 months, because

the Guidelines range "arguably did not reveal the complete

story of the conduct underlying [the defendant's] violations,”

including his "aggressive, violent behavior.” 365 F.3d 582,

589–90 (7th Cir. 2004). And in Durham, we upheld a district

court's sentence at "more than double the high-end of the advisory range” because it "was entirely consistent with its assessment of the gravity of [the defendant's] conduct, the need

to protect the public, and the judge's determination that a serious sentence was necessary to deter [the defendant] from future violations.” 967 F.3d at 580. The same follows here: the

court permissibly concluded that the advisory range did not

reflect the gravity of Dawson's five violations, one of which

involved possessing a loaded semiautomatic handgun with

an extended magazine.

Contrary to what Dawson seems to believe, nothing required the court to follow the recommendations of the government and probation. Probation officers' sentencing

18 No. 20-1233

recommendations do not bind district courts. United States v.

Schuler, 34 F.3d 457, 461 (7th Cir. 1994). The same is true for

the parties' sentencing recommendations. In United States v.

Allgire, for example, the defendant and the government recommended revocation sentences of 8 and 9 months, respectively. 946 F.3d 365, 367 (7th Cir. 2019). We upheld the district

court's 24-month sentence because the court "clearly explained the variance decision with reference to the applicable

sentencing factors, which were reasonably applied.” Id. So too

here. The court's decision to exceed the recommendations of

probation and the government was not plainly unreasonable

because the court grounded its decision in the relevant

§ 3553(a) factors.

The district court did not err, procedurally or substantively, in sentencing Dawson to 24 months of prison for violating the conditions of his supervised release.



AFFIRMED.

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