United States of America v. Allen Teague

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-3132
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
A LLEN TEAGUE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 12-cr-30271-SMY-1 — Staci M. Yandle, Judge.
____________________
No. 20-3316
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
LONNIE WHIPPLE,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 07-cr-30087-SMY-3 — Staci M. Yandle, Judge.

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2 Nos. 20-3132 & 20-3316
____________________
S UBMITTED M AY 19, 2021 — DECIDED A UGUST 10, 2021
____________________
Before WOOD, S T. EVE, and K IRSCH , Circuit Judges.
WOOD, Circuit Judge. One component of a federal criminal
sentence may, and sometimes must, be a period of supervised
release that begins after the offender has completed his time
in prison. 18 U.S.C. § 3583(a). Statutes usually have something
to say about the length of that period. Often they confer con-
siderable discretion on the district court, but there are in-
stances in which they specify the required duration or range.
See, e.g., 21 U.S.C. § 841(b)(1)(C).
Those rules, however, pertain to the initial sentence a
defendant receives. The picture is different for a person who
has completed his term of incarceration and has begun
serving his term of supervised release. If that person violates
the conditions of his supervised release, his probation officer
may move for revocation of supervised release. This case
deals with the choices available to the court in the latter
circumstance—specifically, whether a term of supervised
release that is mandatory for initial sentencing remains a
mandatory part of any new sentence after revocation. The
government concedes that the answer is no, and that the
district court erred when it came to the opposite conclusion.
After taking an independent look at the issue, we too
conclude that revocation operates under different rules. We
therefore vacate the terms of supervised release imposed on
the two defendants before us and order a remand for
reconsideration under the correct standards.

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Nos. 20-3132 & 20-3316 3
I
In each of the appeals we address in this opinion, the de-
fendant violated the conditions of his original term of super-
vision. Each one appeared in front of the same trial court at a
revocation hearing, one four weeks after the other. Acting
pursuant to its authority under 18 U.S.C. § 3583(e) and (h), the
district court ordered each one to be returned to prison and to
serve an additional period of supervised release afterward.
Because the issues presented in the two appeals are identical,
we have consolidated them for disposition.
A. Teague, No. 20-3132
We can be brief with the underlying facts, as nothing turns
on them. In 2013, Allen Teague pleaded guilty to two counts
of distribution of cocaine in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C). The court sentenced him to concurrent terms of
78 months’ imprisonment (a below-guidelines sentence), to be
followed by a statutorily mandated 72-month term of super-
vised release. See 21 U.S.C. § 841(b)(1)(C); 21 U.S.C. § 851.
(The required period for the latter was six years because he
had a qualifying prior felony drug conviction. Id.
§ 841(b)(1)(C) (sentence 3).) Teague’s term of supervised re-
lease began on May 24, 2018.
In July 2020, the U.S. Probation Office filed a petition to
revoke Teague’s supervised release. See 18 U.S.C. § 3583(e);
F ED. R. C RIM . P. 32.1. The petition alleged that Teague had
committed aggravated battery on his pregnant wife, received
a speeding ticket, failed to meet monthly financial obligations,
and failed to submit monthly reports to his probation officer.
After a contested revocation hearing (during which Mrs.

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4 Nos. 20-3132 & 20-3316
Teague recanted her earlier reports to police), the district
court found that Teague had committed aggravated battery
and revoked Teague’s supervised release. On October 20,
2020, the court imposed a term of 36 months’ imprisonment
and an additional 72 months’ supervised release. Its comment
at sentencing indicates that it understood that the period of
supervised release was required by the statute:
So, upon release from imprisonment, the defendant
shall be placed on supervised release for a term—I be-
lieve the statute requires six years? 72 months? …
Tr. of Oct. 20, 2020, at 81. Teague’s lawyer did not object, nor
did the Probation Officer or the Assistant U.S. Attorney.
B. Whipple, No. 20-3316
Four weeks later, the court had before it the Probation Of-
fice’s petition to revoke Lonnie Whipple’s supervised release.
In 2007, Whipple had pleaded guilty to one count of conspir-
acy to distribute over 500 grams of a mixture containing meth-
amphetamine in violation of 21 U.S.C. § 841(a)(1) and one
count of distribution of methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C). The court sentenced him to
concurrent terms of 240 months’ imprisonment on count one
and 141 months’ imprisonment on the other count (count 4),
to be followed by statutorily mandated concurrent terms of
120 months’ and 72 months’ supervised release. 21 U.S.C. §§
841(b)(1)(A), (b)(1)(C). (Like Teague, Whipple had a prior
qualifying felony, thus triggering the mandatory six-year
minimum.) In 2015, Whipple’s term of imprisonment was re-
duced to 81 months pursuant to 18 U.S.C. § 3582(c)(2). As a
result, his supervised-release period began on November 2,
2015.

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Nos. 20-3132 & 20-3316 5
In April 2018, the district court revoked Whipple’s original
term of supervised release after he failed to meet his reporting
requirements, began using methamphetamine again, commit-
ted various driving violations, and fled from the police. The
court sentenced him to 30 months’ imprisonment, again fol-
lowed by concurrent terms of 120 months’ and 72 months’ su-
pervised release. Whipple’s second term of supervision began
on February 13, 2020, but it did not go well. In July 2020, the
Probation Office filed a petition to revoke the second term of
supervised release. This time, Probation alleged that Whipple
had committed driving violations, failed to appear at proba-
tion visits, and changed his residences without notifying his
probation officer.
As requested, the court revoked Whipple’s second term of
supervision on November 16, 2020. The government recom-
mended that the court impose 12 months’ imprisonment with
no additional supervised release. The court chose a different
approach. It sentenced Whipple to an above-guidelines term
of 24 months’ imprisonment on count one and six months’
imprisonment on count four, to be served concurrently. And
here is what it had to say about a new term of supervised re-
lease:
Unless I’m missing something, I believe that – I don’t –
I believe that in order to comply with the statute, that I
am required to impose, on Count 1, not less than 120
months and, on Count 4, not less than 72 months. …
Well, let me just make it clear that that is my – I read
that as statutorily mandated. … So, I just want to make it
clear, (A), I believe it’s statutorily mandated. But even if
I didn’t, I’m not – I would probably – I would likely
impose additional supervised release.

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6 Nos. 20-3132 & 20-3316
Tr. of Nov. 16, 2020, at 14, 16–17. Neither Whipple’s lawyer
nor anyone else present objected to the court’s assertion that
the terms of supervised release were required by statute.
Now, on appeal, both Teague and Whipple argue that the
district court erred in its view that the terms of supervised re-
lease that it eventually imposed were statutorily mandated.
II
Before proceeding, we note that neither defendant
properly preserved his objection to the supervised-release
component of his revocation sentence. But we see no inten-
tional relinquishment of a known right, and so the problem is
not waiver. (If it were, the appeals would be over.) Instead, in
both cases we are looking at forfeiture. A defendant forfeits a
challenge by accidentally or negligently failing to object in
district court. United States v. Wylie, 991 F.3d 861, 863 (7th Cir.
2021). Review is possible, but only for plain error. United
States v. Brown, 973 F.3d 667, 707 (7th Cir. 2020). The Supreme
Court has explained what this entails:
[Federal] Rule [of Criminal Procedure] 52(b) review—
so-called “plain-error review”—involves four steps, or
prongs. First, there must be an error or defect—some
sort of “[d]eviation from a legal rule”—that has not
been intentionally relinquished or abandoned, i.e., af-
firmatively waived, by the appellant. … Second, the le-
gal error must be clear or obvious, rather than subject
to reasonable dispute. … Third, the error must have af-
fected the appellant's substantial rights, which in the
ordinary case means he must demonstrate that it “af-
fected the outcome of the district court proceed-
ings.” … Fourth and finally, if the above three prongs

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Nos. 20-3132 & 20-3316 7
are satisfied, the court of appeals has the discretion to
remedy the error—discretion which ought to be exer-
cised only if the error “‘seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.’”
Puckett v. United States, 556 U.S. 129, 135 (2009) (citations omit-
ted).
In the present appeals, the government concedes the first
two requirements, but originally it contested the third and
fourth. It argued that the district court’s section 3553(a) find-
ings indicates that the court would have imposed the same
terms of supervision even without its erroneous belief that the
terms were statutorily mandated. Thus, it reasoned, the
court’s mistake did not affect the defendants’ substantial
rights. See Molina-Martinez v. United States, 136 S. Ct. 1338,
1347 (2016). The government also argued that because the de-
fendants were aware that some term of supervised release
was likely and quibble only with the length of the sentence
imposed, the fairness and integrity of the judicial process has
not been affected.
About a week after the government submitted its briefs in
these cases, we decided United States v. Wylie, 991 F.3d 861
(7th Cir. 2021). In Wylie, a district court imposed a term of 60
months’ supervision based on its belief that the statute man-
dated such a sentence. Id. at 862. This was error, we held, be-
cause the defendant qualified for safety-valve relief under 18
U.S.C. § 3553(f), which relieves defendants from the con-
straints of statutory minima. Id. at 864. The court was thus em-
powered not only to impose a prison sentence below the oth-
erwise applicable statutory minimum, but also a term of su-
pervised release that was lower than the statutory minimum.

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8 Nos. 20-3132 & 20-3316
Citing Molina-Martinez, we found that Wylie had estab-
lished that the error had affected his substantial rights and the
fairness, integrity, or public reputation of judicial proceed-
ings. Id. We did “not consider the government’s arguments
that the sentence should nonetheless stand because it other-
wise falls within a reasonable range[,]” id., nor did we assume
that the district court would have imposed the same sentence,
since there was no clear indication to that effect, id. We rea-
soned that improper sentencing calculations are “of the
courts’ own making, there is a relatively low cost to correct
them, and the proper application of the Guidelines ensures
the fairness of sentencing among defendants.” Id.; see Rosales-
Mireles v. United States, 138 S. Ct. 1897, 1908 (2018). We va-
cated that portion of Wylie’s sentence and “remand[ed] for
the limited purpose of determining it anew.” Wylie, 991 F.3d
at 862.
In light of Wylie, the government has now abandoned its
objections. It concedes that both Teague and Whipple have
met all four elements of the plain-error test. Its concession
does not relieve us of the obligation to evaluate this issue on
our own, but it is nonetheless significant.
We do note one difference between Wylie and the cases be-
fore us—in the revocation setting now before us, there is no
advisory guidelines range. Wylie included the additional
wrinkle of the safety valve, which relieved him of the initial
mandatory sentencing terms. But the question before us does
not concern initial sentencing; it is about the scope of the dis-
trict court’s powers in a proceeding to revoke supervised re-
lease. That is governed by 18 U.S.C. § 3583(h), which reads as
follows:

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Nos. 20-3132 & 20-3316 9
Supervised release following revocation.—When
a term of supervised release is revoked and the defend-
ant is required to serve a term of imprisonment, the
court may include a requirement that the defendant be
placed on a term of supervised release after imprison-
ment. The length of such a term of supervised release
shall not exceed the term of supervised release author-
ized by statute for the offense that resulted in the orig-
inal term of supervised release, less any term of impris-
onment that was imposed upon revocation of super-
vised release.
Id. (emphasis added). The use of the term “may” in the first
sentence of this section is unambiguous: it is up to the court
whether to add additional supervised release after the de-
fendant serves his additional time in prison. Sometimes that
is appropriate, but sometimes (especially with incorrigible de-
fendants) courts throw up their hands, order as much time in
prison as they can, and decline to add further supervised re-
lease. See, e.g., United States v. Richardson, No. 1:07-cr-00066-
SEB-MJD, 2019 WL 6974451, at *2 (S.D. Ind. Dec. 20, 2019) (de-
clining to add further supervised release where defendant
“returned to the same criminal conduct within two years fol-
lowing his release, all while under supervision”); United States
v. Bishop, No. 6:09-CR-10-GFVT-HAI, 2019 WL 2427964, at *3
(E.D. Ky. May 9, 2019) (concluding that adding more super-
vised release “would be a waste of resources” where defend-
ant had already “rack[ed] up four revocations”); United States
v. Ingraham, No. CR-12-34-GF-BMM-01, 2015 WL 5286593, at
*2 (D. Mont. Sept. 8, 2015) (declining to add additional super-
vised release “based on [the defendant’s] apparent inability
or unwillingness to comply with the conditions of his re-
lease”).

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10 Nos. 20-3132 & 20-3316
That reading is reinforced in the next sentence, which pre-
scribes a ceiling for additional supervised release, but no
floor: it “shall not exceed” the specified amount. We thus con-
clude that the court made an error of law when it stated, in
both Teague’s and Whipple’s cases, that it was compelled to
follow the statutory minimum for supervised release that ap-
plies to original sentencing proceedings. In fact, it was free, if
it thought this best, to impose a lower term of supervised re-
lease. Its contrary impression amounts to plain error. See
United States v. Campos, 922 F.3d 686, 687–88 (5th Cir. 2019)
(likewise finding plain error where, contrary to the language
of section 3583(h), the district court determined that it was re-
quired at post-revocation sentencing to impose the minimum
supervised release mandated by the defendant’s underlying
conviction). We add that although the court indicated that
some additional supervised release would be appropriate for
each defendant, it never said that it would definitely have
chosen these periods. We thus do not regard the error as
harmless.
III
There is one more matter to decide: remedy. Generally,
“when one part of the [sentencing] package is disturbed, we
prefer to give the district court the opportunity to reconsider
the sentence as a whole so as to effectuate its sentencing in-
tent.” United States v. Mobley, 833 F.3d 797, 801 (7th Cir. 2016)
(quotations omitted). But it is not always necessary to reach
back that far. “[A] more limited remand is advisable when the
district court’s reasoning convinces us that the rest of the sen-
tence would not change.” Wylie, 991 F.3d at 865. Based on the
court’s findings for purposes of section 3553(a), we are

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Nos. 20-3132 & 20-3316 11
persuaded that the rest of the sentences it imposed should be
left intact.
In each of these appeals—No. 20-3132 (Teague) and No.
20-3316 (Whipple)—we R EMAND to the district court
exclusively for the purpose of reconsidering the terms of
supervised release.

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