United States of America v. Matias Zarate

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued January 30, 2024
Decided February 27, 2024
Before
DIANE S. SYKES, Chief Judge
THOMAS L. KIRSCH II, Circuit Judge
DORIS L. PRYOR, Circuit Judge
No. 23-2182
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATIAS ZARATE,
Defendant-Appellant.
Appeal from the United States District
Court for the Central District of Illinois.
No. 20-cr-20063-001
Colin S. Bruce,
Judge.
O R D E R
While on federal supervised release, Matias Zarate used cocaine. The district
judge revoked his release (for the second time) and imposed a sentence of 21 months in
prison, the bottom of the recommended Sentencing Guidelines range. Because the judge
adequately explained the reasons for this revocation and prison term, we affirm.
Zarate pleaded guilty to conspiring to transport persons who are unlawfully in
the United States, 8 U.S.C. § 1324(a)(1)(A)(ii), (v)(I). A judge in the Southern District of
Texas sentenced Zarate to 24 months in prison and 36 months of supervised release. In
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. A PP. P. 32.1

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No. 23-2182 Page 2
2019 Zarate began this first round of supervised release, and his supervision was
transferred to the Central District of Illinois.
But Zarate struggled to meet the conditions of supervision. He tested positive for
cocaine and was referred to counseling; he was arrested (and later convicted in Illinois
court) for misdemeanor domestic battery, leading to a modification of the terms of
release to include 60 days of home confinement; and he then admitted to using more
drugs and alcohol, and so agreed to 90 more days of home confinement.
Those modifications did not end Zarate’s troubles. When faced with a first
revocation petition, he admitted to failing to participate in substance-abuse testing and
treatment, for which the judge imposed an 8-month prison term followed by 28 months
of additional supervised release. See 18 U.S.C. § 3583(e)(3) (authorizing reimprisonment
upon revocation); id. § 3583(h) (authorizing a new supervision term after
reimprisonment).
Then during the renewed supervision, Zarate stumbled again, leading to a
second revocation and reimprisonment. This petition to revoke followed Zarate’s arrest
for trespassing and damaging property; a related state criminal case is pending. Zarate
also admitted to drinking alcohol, and he twice tested positive for cocaine.
At Zarate’s second revocation hearing, he admitted to using cocaine twice, and
the government dropped the other grounds for revocation. The judge then calculated
the advisory reimprisonment range under the policy statements in the Sentencing
Guidelines. Zarate’s criminal history category was VI (his prior offenses included,
among other things, robbery, kidnapping, and several burglaries). Zarate’s conceded
Grade B violation resulted in an advisory range of 21 to 27 months of reimprisonment
subject to a 24-month statutory maximum under § 3583(e)(3).
The judge imposed a revocation sentence of 21 months in prison and no further
supervision, noting Zarate’s extensive criminal history and demonstrated lack of
rehabilitation. Zarate had been given multiple chances to conform his conduct to the
terms of supervision, to no avail. Although the judge recognized that Zarate appeared
to suffer from drug and alcohol problems, he had shown little success addressing them
on release. Finally, the judge understood that Zarate had already served an earlier
prison sentence upon revocation and spent several months in jail awaiting this
revocation hearing. Still, the judge explained, he did not see any commitment by Zarate
to tackle his substance abuse; further supervision would therefore be futile.

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No. 23-2182 Page 3
Zarate now contends that the 21-month revocation sentence was plainly
unreasonable because (1) his time already spent on supervised release exceeded his
original term of three years and (2) his violation was nonviolent. Our review of a
revocation sentence is highly deferential; we will uphold the new prison term unless it
is plainly unreasonable. United States v. Yankey, 56 F.4th 554, 560 (7th Cir. 2023). When
revoking supervised release, a judge must consider the Guidelines policy statements
and the § 3553(a) sentencing factors made applicable to revocation by § 3583(e). Id. at
559. A within-range sentence is presumptively reasonable. Id. at 560.
Zarate cannot overcome the presumption of reasonableness. He first contends
that his sentence should be lower because he had already served the 36-month period of
supervised release originally imposed for conspiring to transport persons illegally into
the United States. But § 3583(e)(3) and (h) authorize reimprisonment and a renewed
period of supervised release after the first revocation and further reimprisonment upon
the second revocation, without credit for the previous revocation sentence or previous
periods of release. And Zarate identifies no authority requiring a court to credit his
prior reimprisonment and supervision. See United States v. Perry, 743 F.3d 238, 242
(7th Cir. 2014) (declining to subtract prior prison terms following revocation from the
statutory maximum for subsequent revocations). Indeed, the judge reasonably
concluded that Zarate’s previous supervised release—or rather his repeated violations
of the conditions—cut against further lenience. See United States v. Clay, 752 F.3d 1106,
1109 (7th Cir. 2014) (concluding that a within-range revocation sentence following
“repeated, flagrant violations” of release conditions was reasonable).
Zarate next asserts that the revocation sentence is unreasonable because his drug
use has been nonviolent. But as the judge observed, drug use breaks the law, can be
dangerous, and contributed to Zarate’s difficulties with overall compliance. Zarate’s
reimprisonment term of 21 months lies at the bottom of the range recommended by the
policy statements. And the judge appropriately stressed Zarate’s extensive criminal
history and continued noncompliance with the terms of his supervised release. This
reflects ample consideration of the policy statements and § 3553(a) factors. See Yankey,
56 F.4th at 560 (requiring only a limited explanation of a revocation term). The
nonviolent nature of Zarate’s violation does not entitle him to a below-range sentence.
AFFIRMED

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