Sentencing — probation revocation

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U.S. Court of Appeals for the 7th Circuit

Criminal

Sentencing — probation revocation

Where the judge said at the original sentencing hearing what the sentence would be if the defendant violated his probation, and the judge imposed that sentence after revocation, a nonfrivolous argument for appeal is presented.

“We must, it is true, be careful when a judge has made a spontaneous sentencing statement not to impose an unrealistically literal interpretation on his words. The judge in this case had treated the defendant leniently in sentencing him to 24 months of probation for a crime that carries a maximum sentence of four years. The defendant thumbed his nose at the lenient sentence by forthwith flagrantly violating conditions of probation, especially regarding use of illegal drugs, suggesting a likelihood of his re-engaging in the distribution of such drugs. It was not just ‘the comments that the Court made at the time of sentencing’ that moved the judge to impose the sentence he did but those comments ‘together with the continued violations.’ We have no reason to think it likely, therefore, that if reminded that it is improper for a sentencing judge to commit himself to the imposition of a specific sentence should he revoke the defendant’s probation (or his supervised release, when a prison sentence is imposed rather than probation) the district judge would reduce the 24-month sentence that he imposed on the defendant. But we can grant an Anders motion, and thus both allow the appellant’s lawyer to withdraw from the case and dismiss the appeal, only if there is no nonfrivolous ground of appeal. United States v. Tabb, 125 F.3d 583, 584 (7th Cir. 1997); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996). And we cannot say that an argument that a sentence for violating probation is improper if it is fixed at the time the defendant is sentenced to probation is a frivolous argument. Nor can we be certain that a judge’s apparent commitment in advance to impose a specific sentence for violating probation has no effect on the length of the sentence that he imposes.”

Motion Denied.

13-1902 U.S. v. Tatum

Appeal from the United States District Court for the Eastern District of Wisconsin, Stadtmueller, J., Posner J.