United States of America v. Brian Ray

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 1, 2023
Decided August 14, 2023
Before
DIANE P. WOOD, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 23-1205
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN RAY,
Defendant-Appellant.
Appeal from the United States District
Court for the Southern District of Illinois.
No. 21-CR-30020-SPM
Stephen P. McGlynn,
Judge.
O R D E R
After revoking Brian Ray’s supervised release, the district court sentenced him to
24 months in prison, which was significantly above the applicable range under the
policy statements in Chapter Seven of the Sentencing Guidelines. The court explained
that Ray’s continued methamphetamine use demonstrated that his underlying 30-
month sentence had not been sufficient. On appeal, Ray argues that his sentence is
substantively unreasonable because the court did not adequately demonstrate that it
used the sentencing range as a benchmark or justify the upward variance under the
factors in 18 U.S.C. § 3553(a). But Ray’s sentence is not substantively unreasonable
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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because it is consistent with the court’s assessment of Ray’s criminal history, the need
for deterrence, and the importance of protecting the public from his drug-dealing
activities. Therefore, we affirm.
In 2017, federal law enforcement officers in the Eastern District of Missouri began
investigating Ray for distributing methamphetamine after the U.S. Postal Inspection
Service intercepted a package addressed to him containing that drug. Ray eventually
pleaded guilty in 2018 to one count of possession with intent to distribute
methamphetamine and two counts of possession with intent to distribute 50 grams or
more of methamphetamine. 21 U.S.C. § 841(a)(1), (b)(1)(B), (b)(1)(C). The district court
in the Eastern District of Missouri sentenced him to 30 months’ imprisonment followed
by three years of supervised release.
Ray was released from prison and began his supervision in August 2020. In
February 2021, jurisdiction over his case was transferred to the Southern District of
Illinois.
Ray’s probation officer twice petitioned the district court for revocation of his
supervision, which prohibited Ray from unlawfully possessing a controlled substance
and required him to maintain lawful employment, notify his probation officer of any
change in job or residence, participate in substance-abuse treatment, and report to the
probation officer upon instruction. First, in May 2022, the officer reported that Ray had
unlawfully possessed methamphetamine on three occasions, failed multiple times to
report to the probation office when instructed or submit monthly reports, changed his
residence and quit his job without informing the probation officer, and failed to attend
one of his substance-abuse treatment sessions. The court held a hearing on the petition
in September 2022, and it granted the parties’ request to continue the proceedings for
about three months. But the court warned Ray that he would be sent back to prison
unless he could “demonstrate … between now and the sentencing hearing … that [he
knew] how to be in compliance with supervised release.”
The hearing reconvened on December 13, 2022. The government recommended
dismissal of the petition, explaining that Ray had committed “no substantive
violations” since the previous hearing and had “admitted to everything” in the petition.
The court admonished Ray for the conduct that led to his original conviction,
emphasizing that he was “not before this Court … because [he] had a drug addiction
problem,” but “because [he was] trafficking methamphetamine”; and that while
“[d]estroying [his] own life is one thing,” his drug dealing had a destructive impact on

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No. 23-1205 Page 3
the public, including parents and “children who are born addicted to
methamphetamine.” The court then granted the request to dismiss the revocation
petition. But the court warned Ray of serious consequences if he committed any further
violations:
If you get charged with any crime while you're on supervised release,
you're going to compound your problems in ways you can't imagine.
There's a lot of ways you can violate supervised release, some I'm not
going to get too terribly worked up about. But methamphetamine and
drugs, I am.
…
I don't know if you were hoping for a pep talk, but I think a reality check
is in order. Don't fall backwards. You're going to regret it.
Just three days later, the probation officer filed a second petition for revocation,
reporting that Ray had again violated his supervision terms. In addition to restating
Ray’s previous violations, the petition asserted that Ray had admitted to the probation
officer on December 13—just after that day’s hearing—that he had used
methamphetamine about two days earlier.
The court held another revocation hearing in January 2023. At the outset, Ray’s
counsel stated that Ray did not contest any of the violations in the second petition. The
court then noted that Ray faced a statutory maximum penalty of 24 months’
reimprisonment on the first count and 36 months on the other two counts, along with a
policy-statement range of 4 to 10 months’ reimprisonment (based on Ray’s criminal
history category I and a Grade B most-serious violation for methamphetamine
possession). See U.S.S.G. § 7B1.4. The government and defense counsel both requested a
total sentence of six months’ imprisonment followed by one year of supervised release,
agreeing that this would be sufficient. Ray also gave a brief allocution, acknowledging
that he was “absolutely an addict” and was “responsible for what [he] did.”
The court then revoked Ray’s supervised release and sentenced him to 24
months’ imprisonment and one additional year of supervised release. The court gave a
thorough explanation for the sentence, noting that Ray had received a “good deal” with
his initial 30-month prison sentence but had squandered it by violating the conditions
of his supervision. Further, the court highlighted, Ray had “promised” at the December
hearing that he “wouldn’t test positive for meth,” but he then tested positive later that
same day. It also emphasized that Ray was “going to kill [himself] or … going to kill

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other people” by continuing to return to meth, and that a lengthy prison sentence was
necessary because his 30-month sentence “didn’t work”: Ray hadn’t “changed [his] life
around” by refraining from drug use, demonstrating that he was “not serious about
being law abiding.” The court further explained that it was sentencing Ray above the
range “because you've repeatedly violated in a meaningful way the terms of your
supervised release. There's multiple instances where you've tested positive for
methamphetamine[.]”
On appeal, Ray challenges only the substantive reasonableness of his revocation
sentence. He argues that his 24-month sentence—well above the applicable policy-
statement range of 4 to 10 months—is plainly unreasonable because the district court
did not show that it used the Guidelines as a benchmark, mentioning them only in
passing when imposing the sentence. Further, Ray contends, the court did not justify its
variance with an explanation rooted in the § 3553(a) factors, as required when a
sentence deviates significantly from the range.
The government responds that the above-range sentence is not plainly
unreasonable because it reflected the court’s assessment—as explained at sentencing—
of the gravity of Ray’s numerous violations, particularly his repeated
methamphetamine use, and the need to deter Ray from future criminal conduct and
protect the public. The government emphasizes that, at the December 2022 hearing, Ray
omitted from his promises to the court that he was continuing to use
methamphetamine, allowing the court to dismiss the first revocation petition when he
had used the drug two days earlier. The government also identifies multiple examples
of comparable upward variances that we have affirmed as reasonable based on
defendants’ criminal histories and the need for deterrence.
Our review of a revocation sentence under 18 U.S.C. § 3583(e)(3) for substantive
reasonableness is “highly deferential.” 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)). We
will reverse only if the sentence is “plainly unreasonable.” Id. The sentencing court is
not required to follow the parties’ sentencing recommendations, and it may impose an
above-guidelines sentence based on its assessment of the gravity of the defendant’s
conduct, the need to protect the public, and the importance of providing deterrence.
United States v. Dawson, 980 F.3d 1156, 1166 (7th Cir. 2020); 18 U.S.C. § 3583(e). The
amount of justification that the court must provide depends on how much the sentence
varies from the range. See United States v. Jones, 774 F.3d 399, 405 (7th Cir. 2014).

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Here, the district court provided a sufficient justification for the upward
variance, and Ray’s 24-month sentence is therefore not “plainly unreasonable.” In
imposing the sentence, the court emphasized the importance of a lengthy prison term to
deter Ray from future methamphetamine use, noting that the initial 30-month sentence
“didn’t work” because Ray continued to commit drug violations while on supervision.
The court also highlighted the need to protect the public from the possibility of Ray
resuming his drug-dealing, discussing methamphetamine’s dangerous impact on
society and emphasizing that Ray was “going to kill other people” if he continued to
return to the drug.
The court had also discussed these factors at the previous revocation hearings in
September and December 2022, which involved nearly all the same alleged violations. It
emphasized the seriousness of Ray’s offense of conviction (noting that he was not there
for using drugs but “because [he was] trafficking methamphetamine”), highlighted the
danger his activities posed to the public (referencing parental users and “children who
are born addicted to methamphetamine”), and warned Ray that he would face serious
consequences if he committed any additional drug-related violations of his supervision.
The court also cited the leniency of Ray’s underlying 30-month sentence and his failure
to take advantage of it. This was a permissible justification for varying upward in the
subsequent sentence. See United States v. Wade, 890 F.3d 629, 633–34 (7th Cir. 2018).
Particularly under a “highly deferential” review, Durham, 967 F.3d at 580, the court’s
explanation for the sentence was grounded in the appropriate § 3553(a) factors and was
not “plainly unreasonable.” Id.
Further, we have upheld the substantive reasonableness of similar revocation
sentences. For example, in United States v. Dawson, we affirmed a 24-month revocation
sentence with a policy-statement range of 6 to 12 months, where the defendant
possessed a loaded firearm while on supervision, and the district court concluded that
the guidelines did not accurately reflect the seriousness of the breach of the court’s
trust. 980 F.3d at 1166. Similarly, in United States v. Allgire, 946 F.3d 365, 367 (7th Cir.
2019), we ruled that a 24-month revocation sentence with a range of 5 to 11 months was
not substantively unreasonable, where the defendant had failed to remain in a halfway
house as required by his supervision terms, and the district court justified the sentence
based on his repeated violations and apparent likelihood of recidivism. Id. at 367–68.
Ray’s circumstances do not differ meaningfully from those in Dawson and Allgire.
Here, too, the district court assessed Ray’s likelihood of recidivism based on his
criminal history and demonstrated inability to refrain from methamphetamine use, as

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well as the necessity of a serious sentence to deter Ray from future violations, and it
selected a sentence consistent with this assessment. True, the court’s explanation for the
upward variance at the final hearing was brief (focusing primarily on the fact that Ray
had ”repeatedly violated” his supervision by using meth), but taken together with its
comments at the first two hearings, the court provided a more thorough justification
consistent with the § 3553(a) factors: It discussed Ray’s criminal history trafficking
drugs, his likelihood of recidivism based on his repeated drug use, and the need to
protect the public and provide deterrence. See Dawson, 980 F.3d at 1160–61; Allgire,
946 F.3d at 367; 18 U.S.C. § 3553(a)(1), (a)(2)(A)–(C). Therefore, the court here justified
the size of the variance from the policy-statement range. See Jones, 774 F.3d at 405.
AFFIRMED

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