United States of America v. Michael G. Yankey

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1697
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ICHAEL G. Y ANKEY ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 4:12-cr-40043-JPG-1 — J. Phil Gilbert, Judge.
____________________
A RGUED S EPTEMBER 28, 2022 — DECIDED J ANUARY 3, 2023
____________________
Before EASTERBROOK, HAMILTON , and BRENNAN , Circuit
Judges.
HAMILTON , Circuit Judge. While on supervised release, ap-
pellant Michael Yankey admitted to a probation officer that he
had used methamphetamine and cocaine. Yankey’s super-
vised release was revoked, and he was sentenced to 24
months in prison followed by 24 more months of supervision.
Yankey appeals this sentence, arguing that the district court
disregarded his mitigation arguments and failed to consider

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2 No. 22-1697
relevant sentencing factors, and that his sentence is substan-
tively unreasonable. We affirm.
I. Factual and Procedural Background
Yankey’s underlying convictions occurred in 2013. Yankey
pleaded guilty to the class C felony of conspiring to manufac-
ture and distribute methamphetamine in violation of
21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. The Presentence
Investigation Report prepared for Yankey’s sentencing erro-
neously calculated the advisory guideline range as 92–115
months. Before sentencing, the parties notified the court that
this calculation was too low and Yankey agreed that the
proper advisory guideline range was 151–188 months. The
court explained at sentencing that the Presentence Investiga-
tion Report had applied the wrong base offense level for the
quantity of drugs involved. The court nonetheless considered
“varying downward to the original presentence report” and
sentenced Yankey to 115 months in prison followed by 48
months of supervised release. This prison term was 36 months
below the bottom of the proper advisory guideline range. In
other words, Yankey caught a break.
In November 2020, Yankey began his four-year term of su-
pervised release. The probation office’s summary of Yankey’s
violation conduct indicates that he associated with people en-
gaged in criminal activity and had a certain person at his
home who his probation officer had specifically and repeat-
edly warned could not be there. During a March 9, 2022 visit
from his probation officer, drugs and paraphernalia were
found in Yankey’s home, and Yankey admitted that on March
7, 2022, he had used methamphetamine and cocaine. The pro-
bation office petitioned the district court to revoke Yankey’s
supervised release.

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No. 22-1697 3
At the revocation hearing, Yankey pleaded guilty to pos-
sessing methamphetamine and cocaine. The Sentencing
Guidelines classify both charges as Grade B Violations.
U.S.S.G. § 7B1.1(a)(2). Yankey has a criminal history category
of VI. Under the Guidelines, Yankey faced a recommended
range of imprisonment upon revocation of 21 to 27 months.
§ 7B1.4(a). However, Yankey’s statutory maximum sentence
upon revocation was 24 months, 18 U.S.C. § 3583(e)(3), yield-
ing an effective recommended range of 21 to 24 months in
prison under the Guidelines. See U.S.S.G. § 7B1.4(b)(3) (statu-
tory maximum becomes top of guideline range that would
otherwise exceed maximum).
The government argued for the statutory maximum of 24
months in prison because Yankey’s criminal history showed a
sustained pattern of violations of parole and supervised re-
lease. For example, Yankey was on state parole when he com-
mitted the drug offenses that led to his underlying federal
conviction. Another time, Yankey was convicted of driving
with a revoked license while on probation for a DUI. Yankey’s
counsel argued for time served and treatment for drug addic-
tion in lieu of imprisonment, or, in the alternative, the post-
ponement of sentencing pending an opportunity for treat-
ment. The judge who considered revoking supervised release
was the same judge who had given Yankey the below-guide-
line sentence for his underlying convictions. Based on his
prior leniency and his rejection of Yankey’s claim that he had
used drugs only this one time while on supervised release, the
judge imposed a revocation sentence of 24 months in prison
followed by 24 more months of supervised release.

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4 No. 22-1697
II. Analysis
A. Mitigation Arguments
Yankey argues first on appeal that the district court ig-
nored the mitigation arguments he raised at the revocation
hearing. We review de novo whether the court made a proce-
dural error by failing to consider mitigation arguments. See,
e.g., United States v. Dawson, 980 F.3d 1156, 1164 (7th Cir.
2020).
The requirements for addressing mitigation arguments
differ between initial sentencing and revocation proceedings
because the latter are more informal. Dawson, 980 F.3d at 1165.
During an initial sentencing hearing, the district court must
“address a defendant’s principal arguments in mitigation that
have legal merit.” United States v. Williams, 887 F.3d 326, 328
(7th Cir. 2018). At a revocation hearing, a defendant has the
right to “make a statement and present any information in
mitigation.” Fed. R. Crim. P. 32.1(b)(2)(E); see also Morrissey
v. Brewer, 408 U.S. 471, 486–87 (1972). But we have never re-
quired district courts to address explicitly those arguments
during revocation proceedings. Williams, 887 F.3d at 328. Ra-
ther, we require more flexibly that district courts approach
revocation hearings “with an open mind and consider the ev-
idence and arguments presented before imposing punish-
ment.” United States v. Dill, 799 F.3d 821, 825 (7th Cir. 2015).
Yankey had the opportunity to present mitigation argu-
ments at his revocation proceeding. He declined the judge’s
invitation to speak about mitigation on his own behalf, but his
lawyer did stress the positive aspects of Yankey’s life. Yankey
had steady employment, a family support system, had paid

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No. 22-1697 5
back child support, had never failed a drug test while on su-
pervision, and had not received addiction treatment.
Yankey contends that the record is “devoid of any indica-
tion as to whether the district court rejected or deemed unper-
suasive Mr. Yankey’s legitimate mitigation arguments.” We
do not require a sentencing judge to opine about the merits of
each argument raised at a revocation hearing. Even in more
formal original sentencing proceedings where the require-
ments for considering mitigation arguments are higher, we
“try to take careful note of context and the practical realities
of a sentencing hearing. District judges need not belabor the
obvious.” United States v. Reed, 859 F.3d 468, 472 (7th Cir.
2017), quoting United States v. Castaldi, 743 F.3d 589, 595 (7th
Cir. 2014). “[O]ur inquiry focuses not on the detail with which
the district court expressed its reasons for imposing a speci-
fied period of confinement, but on whether the district court’s
statements on the record reflect that it considered the appro-
priate factors in exercising its discretion.” United States v.
Boultinghouse, 784 F.3d 1163, 1178 (7th Cir. 2015), quoting
United States v. Pitre, 504 F.3d 657, 664 (7th Cir. 2007). Com-
ments and questions indicating that the court “implicitly
acknowledged” mitigation arguments can be enough. See
Dawson, 980 F.3d at 1165. Here, several of the judge’s ques-
tions and comments assure us that he considered the mitiga-
tion arguments.
Letters were submitted in support of Yankey’s arguments
relating to employment and family support. The judge said
on the record that he had read these letters, indicating that the
relevant mitigation arguments were considered. See United
States v. Graham, 915 F.3d 456, 459 (7th Cir. 2019) (“a court’s
statement that it has read the defendant’s submissions is often

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6 No. 22-1697
‘enough to satisfy us that [it has] considered the argu-
ment …’”), quoting United States v. Ramirez-Gutierrez, 503 F.3d
643, 646 (7th Cir. 2007). As to Yankey’s arguments about prior
treatment and length of sobriety, at several points during the
hearing the court spoke about these topics, demonstrating its
consideration of them. The court repeatedly asked defense
counsel and Yankey himself about his treatment history. Yan-
key said that he had completed a 40-hour drug education pro-
gram while in prison. The court also expressed skepticism to-
ward Yankey’s claim that this charged violation was the first
time he had used drugs during his supervised release. This
skepticism undercuts Yankey’s claim that his mitigation argu-
ments were not considered. See United States v. Wade, 890 F.3d
629, 632 (7th Cir. 2018) (finding proper consideration of miti-
gation arguments even when judge considered one proposed
mitigating factor as an aggravating factor).
The only mitigation factor that the judge did not address
directly was that Yankey had paid off back child support that
had accrued while he was in prison. This was not a reversible
error. Yankey’s attorney mentioned this fact only once during
the revocation hearing. The judge would not have been
obliged to explain how every potential mitigation point af-
fected his reasoning even in an original sentencing, let alone
in a revocation proceeding. See Dawson, 980 F.3d at 1164 (not-
ing that “district court ‘need not make factual findings on the
record for each factor’”), quoting United States v. Carter, 408
F.3d 852, 854 (7th Cir. 2005); see also United States v. Ford, 798
F.3d 655, 664 (7th Cir. 2015) (affirming sentence upon revoca-
tion of supervised release where judge “did not specifically
mention the need to provide Ford training and treatment or
the goal of avoiding sentencing disparities,” because “he was
not required to run through each factor one by one”).

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No. 22-1697 7
For original sentencing hearings, we have encouraged dis-
trict judges to ask the parties, and especially defendants,
whether their arguments have been adequately addressed at
sentencing:
In order to ensure that defendants feel that they
have had such arguments in mitigation ad-
dressed by the court and to aid appellate re-
view, after imposing [a] sentence but before ad-
vising the defendant of his right to appeal, we
encourage sentencing courts to inquire of de-
fense counsel whether they are satisfied that the
court has addressed their main arguments in
mitigation. If the response is in the affirmative,
a later challenge for failure to address a princi-
pal mitigation argument … would be consid-
ered waived. If not, the trial court would have
the opportunity to clarify whether it determined
that the argument was ‘so weak as not to merit
discussion,’ lacked a factual basis, or has re-
jected the argument and provide a reason why.
United States v. Garcia-Segura, 717 F.3d 566, 569 (7th Cir. 2013);
see also United States v. Donelli, 747 F.3d 936, 941 (7th Cir.
2014) (applying Garcia-Segura and finding waiver of appellate
claim that mitigation arguments were not considered). A sim-
ilar inquiry might be useful in a contested supervised release
hearing so that any needed explanation could be provided on
the spot, without the delay of an appeal.
B. Sentencing Factors
Next, Yankey argues that the district court failed to con-
sider required factors in reaching his revocation sentence. We

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8 No. 22-1697
review this claim of procedural error de novo. E.g., Dawson,
980 F.3d at 1164.
To revoke supervised release, the judge must consider
some but not all of the statutory sentencing factors. See 18
U.S.C. § 3583(c), citing portions of § 3553(a). In deciding a rev-
ocation sentence, the judge must consider: “the nature and
circumstances of the offense and the history and characteris-
tics of the defendant,” § 3553(a)(1), how to “afford adequate
deterrence to criminal conduct,” § 3553(a)(2)(B), how to “pro-
tect the public from further crimes of the defendant,”
§ 3553(a)(2)(C), how to provide the defendant with needed
“correctional treatment in the most effective manner,”
§ 3553(a)(2)(D), the guideline range and certain policy state-
ments by the Sentencing Commission, § 3553(a)(4) & (5), “the
need to avoid unwarranted sentencing disparities,”
§ 3553(a)(6), and “the need to provide restitution,”
§ 3553(a)(7).1
The sentencing court must say “something” to indicate
that the court considered these factors, but “need not consider
the § 3553 factors in check-list form.” Ford, 798 F.3d at 663,
quoting United States v. Robertson, 648 F.3d 858, 859–60 (7th
Cir. 2011), and United States v. Jones, 774 F.3d 399, 404 (7th Cir.
2014). The § 3553 factors that the court is not required to con-
sider when deciding a supervised release violation are the
need for the chosen sentence “to reflect the seriousness of the
offense, to promote respect for the law, … to provide just
1 In considering how to provide the defendant with needed “correc-
tional treatment in the most effective manner” under § 3553(a)(2)(D), the
court may not impose or lengthen a prison term “in order to foster a de-
fendant’s rehabilitation.” Tapia v. United States, 564 U.S. 319, 323 (2011),
applying 18 U.S.C. § 3582(a).

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No. 22-1697 9
punishment for the offense,” § 3553(a)(2)(A), and “the kinds
of sentences available,” § 3553(a)(3).
Judge Gilbert’s questions here show that he considered the
nature and circumstances of the offense, the characteristics of
the defendant, and the need for treatment. The judge asked
where Yankey obtained the drugs, whether he called his pro-
bation officer for help when faced with relapse, and what
drug education or treatment programs he had completed. The
judge also noted that Yankey “obviously do[es] have an ad-
diction.” The judge focused his reasoning for his sentence pri-
marily on the fact that Yankey received an original sentence
36 months below the recommended guideline range. This
consideration of Yankey’s criminal history was proper and
helps show that the court did consider the statutory sentenc-
ing factors. See Wade, 890 F.3d at 633 (noting that judge could
consider prior leniency in imposing an above-guideline sen-
tence). The judge’s questions and comments show that he
properly considered the required factors.
C. Substantive Reasonableness
Finally, Yankey challenges the substantive reasonableness
of his sentence. Our substantive review of a sentence resulting
from revocation of supervised release is “highly deferential.”
Ford, 798 F.3d at 663, quoting Jones, 774 F.3d at 403. “We will
sustain the sentence so long [as] it is not ‘plainly unreasona-
ble.’” Boultinghouse, 784 F.3d at 1177, quoting United States v.
Kizeart, 505 F.3d 672, 674 (7th Cir. 2007). Yankey’s sentence
was within the guideline range, so on appeal it is entitled to a
presumption of reasonableness. E.g., id. at 1178. “The defend-
ant bears the burden of rebutting that presumption by
demonstrating that the sentence is unreasonably high in light
of the section 3553(a) factors.” United States v. Jarigese, 999

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10 No. 22-1697
F.3d 464, 473 (7th Cir. 2021). The court need only give a “con-
cise explanation” for imposing a within-guideline sentence.
Boultinghouse, 784 F.3d at 1178.
The judge explained in imposing the sentence that the
“Court gave you a break the first time,” referring to the fact
that Yankey’s sentence for his underlying convictions was
three years below the bottom of the applicable guideline
range. Considering leniency from the underlying sentence
while sentencing Yankey after revocation of his supervised re-
lease was not improper. Such consideration is condoned in
the application notes to the Sentencing Guidelines, which
even suggest using prior leniency to support “an upward de-
parture.” U.S.S.G. § 7B1.4 n.4; see also Wade, 890 F.3d at 633
(holding that prior leniency in part justified upward depar-
ture). The district court’s decision that the prior below-guide-
line sentence justified a revocation sentence at the top of—but
still within—the guideline range was not plainly unreasona-
ble.
Yankey’s sentence is AFFIRMED.

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