United States of America v. Kash Deshawn Lee

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17‐2537
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
KASH D ESHAWN LEE ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:07‐cr‐40048 — James E. Shadid, Chief Judge.
____________________
A RGUED FEBRUARY 20, 2018 — D ECIDED J ULY 30, 2018
____________________
Before W OOD, Chief Judge, and EASTERBROOK and BARRETT ,
Circuit Judges.
BARRETT, Circuit Judge. Kash Lee appeals the sentence he
received when his supervised release was revoked. He faults
the district court for not addressing what he now character‐
izes as his principal argument in mitigation: that a longer sen‐
tence would unjustifiably subject him to harsher treatment
than similarly situated defendants. But Lee did not make this

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2 No. 17‐2537
argument in the district court, so the district court had no ob‐
ligation to address it. Lee also complains that the district court
failed to fill out a form stating the reasons for his sentence. It
is not clear that a district court has an obligation to fill out
such a form when revoking supervised release. Even if it does,
however, Lee suffered no prejudice from the district court’s
failure to complete this administrative task.
I.
Kash Lee was sentenced to life imprisonment and ten
years of supervised release for several drug‐trafficking con‐
victions. His term of imprisonment was reduced to 312
months in prison in return for his substantial assistance to the
government, and it was later reduced still further—to 112
months—because of a retroactive change in the Sentencing
Guidelines. After he was discharged from prison, he moved
to Iowa, where he began serving his term of supervised re‐
lease.
But Lee did not adopt a law‐abiding lifestyle. He violated
conditions of his supervised release by missing numerous
scheduled drug tests and meetings with his probation officer.
And more seriously, he battered his girlfriend, Delisa Roland,
by chasing her down a flight of stairs and repeatedly kicking
her after she fell. Lee fled, but he was ultimately arrested. He
then called several friends and relatives from jail, cajoling
them to get Roland to change her story. Roland testified any‐
way, and the district court found that Lee had violated the
conditions of his supervised release by battering her and by
missing required appointments with his probation officer.
At sentencing, the government argued for three years’ im‐
prisonment, while Lee argued for no more than a year and a

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No. 17‐2537 3
day. He made several arguments in favor of the shorter sen‐
tence, but only one is at issue in this appeal: that using the
federal revocation proceedings to punish him for the battery
would be “the tail wagging the dog.” Lee pointed out that the
battery was “a state court misdemeanor in Scott County,” and
a misdemeanor “under Iowa law can’t get more than a year.”
If the matter were “handled in the state court system,” Lee
argued, the court “probably would have made both parties go
to counseling, get treatment to try to repair the family unit.”
Instead, the government had gone “full‐bore litigation for a
Grade C violation, a misdemeanor,” and was seeking three
years’ imprisonment even though the Guidelines range was
eight to fourteen months.
The district court sentenced Roland to 30 months’ impris‐
onment and six years of supervised release. It justified that
sentence by recounting Lee’s numerous violations of super‐
vised release leading up to his attack on Roland, by crediting
Roland’s account of Lee’s battery, and by acknowledging the
need to deter further criminal conduct and protect the public.
Lee appeals that sentence.
II.
Under our decision in United States v. Cunningham, a dis‐
trict court imposing a sentence must address a criminal de‐
fendant’s “principal” arguments in mitigation unless they are
“so weak as not to merit discussion.” 429 F.3d 673, 679 (7th
Cir. 2005); see also United States v. Davis, 764 F.3d 690, 694 (7th
Cir. 2014); United States v. Rita, 551 U.S. 338, 357–58 (2007)
(“The sentencing judge should set forth enough to satisfy the
appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal deci‐
sionmaking authority.”); cf. Chavez‐Meza v. United States,

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4 No. 17‐2537
– U.S. –, 138 S. Ct. 1959, 1965 (2018) (acknowledging that the
sentencing judge should “make[] clear that he or she has con‐
sidered the parties’ arguments”). To trigger that requirement,
the defendant’s argument must be “fully developed” and
“supported by a compelling factual basis.” United States v.
Jackson, 547 F.3d 786, 795 (7th Cir. 2008). And it must be one of
the defendant’s “principal” arguments; a district court need
not offer a reason for rejecting every one of the defendant’s
contentions. United States v. Martinez, 650 F.3d 667, 672 (7th
Cir. 2011).
Lee claims that the district court violated Cunningham by
ignoring one of his principal arguments in mitigation. When
it imposes a sentence, the district court must consider a set of
statutory factors, including “the need to avoid unwarranted
sentencing disparities among defendants with similar records
who have been found guilty of similar conduct.” See 18 U.S.C.
§ 3553(a)(6) (initial sentence) & 18 U.S.C. § 3583(e) (revocation
of supervised release). Lee characterizes his discussion of the
penalties for battery under Iowa law as an argument about
this sentencing factor, and he complains that the district court
did not respond to it in articulating the basis for Lee’s sen‐
tence. Invoking Cunningham, he insists that we must remand
his sentence with instructions that the court put its reasons for
rejecting Lee’s “unwarranted disparities” argument on the
record.
The problem is that Lee did not make an “unwarranted
disparities” argument, so he did not trigger the district court’s
duty under Cunningham. At sentencing, Lee contended that
he would face only a one‐year sentence if he were being pros‐
ecuted in state court for domestic battery; he also asserted (ap‐
parently without evidence) that such a prosecution would

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No. 17‐2537 5
“probably” just result in his being sent to counseling. This is
certainly an argument that the worst of his offenses was not
serious enough to justify a higher sentence. But it is not an
argument that an above‐Guidelines sentence would create a
disparity “among defendants with similar records who have
been found guilty of similar conduct,” and that such a disparity
would be unwarranted. United States v. Durham, 645 F.3d 883,
897 (7th Cir. 2011). Lee did not identify any defendant with a
similar record (for example, one with a conviction for drug
trafficking) found guilty of similar conduct (for example, vio‐
lating multiple conditions of supervised release, including by
committing a domestic battery), much less explain why a
comparatively higher sentence was unwarranted in his case.
See United States v. Anaya‐Aguirre, 704 F.3d 514, 518 (7th Cir.
2013) (holding that a sentencing court need not address an
unwarranted‐disparities argument unless the defendant pro‐
vides a “sufficient evidentiary showing” that his situation is
comparable to defendants who received a lower sentence).
Because Lee did not make any of these points, he did not come
close to presenting a developed, meritorious argument that
the proposed sentence would create unwarranted disparities
between him and similarly situated defendants. And the dis‐
trict court had no obligation to address an argument that Lee
did not make.
III.
Lee next asks that we perform a limited remand to require
the district court to file a written statement of reasons. When
a district court sentences a criminal defendant, it must an‐
nounce “the reasons for its imposition of the particular sen‐
tence” in open court, including, if applicable, an explanation
of why the district court chose a sentence outside of the range

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6 No. 17‐2537
recommended by the Sentencing Guidelines. 18 U.S.C.
§ 3553(c). Except for the Cunningham challenge that we re‐
jected above, Lee does not allege that the district court failed
to orally explain its reasons for sentencing Lee to an above‐
Guidelines sentence. But the district court did not fill out a
“statement of reasons” form that committed those reasons to
writing. 18 U.S.C. § 3553(c)(2). Lee asks us to remand his case
so that the district court can complete the form.
It is unclear whether the statute requires the form when a
court revokes supervised release. The Eleventh Circuit has
said that it does, United States v. Parks, 823 F.3d 990, 993–94
(11th Cir. 2016); the Eighth Circuit has reached the contrary
conclusion, albeit under a prior version of the statute, United
States v. Cotton, 399 F.3d 913, 915–16 (8th Cir. 2005). We do not
need to decide that issue, however, because any error is harm‐
less.
Lee has suffered no prejudice from the lack of a written
statement of reasons, because the district court’s oral explana‐
tion was sufficient. A district court must explain its sentence
so that a reviewing court can evaluate the adequacy of its ra‐
tionale. See Chavez‐Meza, 138 S. Ct. at 1965 (“If the court of ap‐
peals considers an explanation inadequate in a particular
case, it can send the case back to the district court for a more
complete explanation.”). But it is the explanation that matters,
not the form in which it appears. United States v. Baker, 445
F.3d 987, 991 (7th Cir. 2006) (“[It] is irrelevant whether [the
court’s] rationale is contained in a written statement or, alter‐
natively, was articulated orally at the sentencing hearing.”).
And Lee is complaining about the absence of the document,
not the adequacy of the explanation. We agree with our sister
circuits: when the oral statement of reasons is sufficient, we

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No. 17‐2537 7
will not remand simply because the written statement is lack‐
ing. United States v. Jackson, 848 F.3d 460, 465 (D.C. Cir. 2017)
(collecting cases); United States v. Vazquez‐Martinez, 812 F.3d
18, 25–26 (1st Cir. 2016).
This approach makes sense, because the written statement
of reasons is not a procedural safeguard for the defendant; ra‐
ther, it serves a record‐keeping function for the Sentencing
Commission. Jackson, 848 F.3d at 463–64. Before a 2010 amend‐
ment, 18 U.S.C. § 3553(c)(2) required a sentencing court to
state with specificity its reasons for giving a non‐Guidelines
sentence in “the written order of judgment and commitment.”
Congress eliminated that requirement in 2010, amending the
statute to require that a court instead include its explanation
in “a statement of reasons form issued under section
994(w)(1)(B) of title 28.” Pub. L. No. 111‐174, § 4, 124 Stat.
1216, 1216 (2010). That section, in turn, obliges the Chief Judge
of each district to ensure that the courts of that district send
information to the Commission relating to each sentencing.
Courts send the Commission data about the sentence im‐
posed, the offense, and the demographic information of the
offender; they also relay documents relating to the conviction
and sentence, including a “written statement of reasons” that
“include[s] the reason for any departure from the otherwise
applicable guideline range.” 28 U.S.C. § 994(w)(1)(B). That
statement must be provided on a form designed by the Com‐
mission. Id. The Commission ultimately analyzes the aggre‐
gated reports and makes recommendations to Congress
based on its analysis. 28 U.S.C. § 994(w)(3). The statutory
scheme does not contemplate that the reports to the Commis‐
sion will play any role in the individual cases that generate
them; instead, the reports are for the Commission to use in the
course of its work. In short, the written statement of reasons

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8 No. 17‐2537
appears to serve principally, if not exclusively, an administra‐
tive purpose unrelated to the rights of the defendant. See Jack‐
son, 848 F.3d at 464; Vazquez‐Martinez, 812 F.3d at 25–26; United
States v. Shakbazyan, 841 F.3d 286, 292 (5th Cir. 2016).
Because the form is a means of collecting data for the Com‐
mission, a defendant ordinarily suffers no harm when a suffi‐
ciently explained sentence fails to generate a written state‐
ment of reasons.1 True, the requirements of § 994(w)(1)(B) are
designed to benefit criminal defendants generally by helping
the Commission improve sentencing practices. But a criminal
defendant is not harmed by the omission of his sentence from
the aggregate data the Commission uses to analyze the sys‐
tem. Absent identifiable prejudice to the defendant, a district
court’s failure to file the form is not itself grounds for vacating
and remanding the sentence to the district court.
* * *
The district court’s judgment is AFFIRMED.
1 Straining to identify some other harm he might suffer from the absence
of the form, Lee claims that a written statement of reasons “helps … the
Bureau of Prisons determine [his] access to programs and treatment dur‐
ing his incarceration.” But Lee has not asserted that he is eligible for such
programs and treatment during his incarceration, let alone that the lack of
a written statement of reasons will impede his access to them.

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