                              In the

    United States Court of Appeals
                  For the Seventh Circuit
                    ____________________
No. 14-2223
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,

                                v.

JESSE A. SMITH,
                                             Defendant-Appellant.
                    ____________________

        Appeal from the United States District Court for the
                     Central District of Illinois.
       No. 4:08-cr-40067-SLD-JEH-1— Sara Darrow, Judge.
                    ____________________

  SUBMITTED DECEMBER 3, 2014 — DECIDED JANUARY 5, 2015
                ____________________

   Before POSNER, ROVNER, and TINDER, Circuit Judges.
    POSNER, Circuit Judge. In an opinion reported at 770 F.3d
653 (7th Cir. 2014), we considered the appeal of Jesse Smith
from a sentence of 15 months in prison imposed on him by
Judge Darrow for violating conditions of supervised release.
While remarking that the defendant’s current profile was not
that of a dangerous criminal and expressing doubt about the
utility of his continued imprisonment, we indicated that we
would have affirmed Judge Darrow’s judgment had we not
2                                                   No. 14-2223


discovered in the record a document (called a Violation
Memorandum), mentioned by neither party, dated February
18, 2011, that had been prepared by the probation service
shortly before the defendant had been sentenced by another
district judge for an earlier violation of supervised release.
The document states that the assistant U.S. attorney han-
dling the revocation case was Sara Darrow, who six months
later was confirmed as a federal district judge. The docket
sheet in this case states that she had appeared before the
judge handling the defendant’s first violation on January 7,
2011, for the initial hearing on that alleged violation. There is
no indication that she had appeared at any subsequent hear-
ing, or had had any further involvement with the defendant
until the present case. One of the government’s appellate
lawyers noticed the reference on the docket sheet to Dar-
row’s participation in the earlier revocation hearing as an
assistant U.S. attorney and asked one of the defendant’s
lawyers whether he wanted to make an issue of it on appeal.
(The issue had not been raised in the district court.) The
lawyer declined. We just happened to come across the Viola-
tion Memorandum, which is part of the record in this case,
and having read it became concerned there might be an is-
sue of recusal.
   The hearing at which Judge Darrow sentenced the de-
fendant was held on May 29, 2014. We did not know, when
we were considering the defendant‘s appeal from the sen-
tence, how extensive her participation in the 2011 hearing
had been, or whether at the hearing this past May at which
she had sentenced the defendant she had had any conscious
or unconscious memory of the earlier hearing. We could not
exclude the possibility that the sentence had been influenced
by a recollection by the judge, perhaps prompted by the de-
No. 14-2223                                                    3


fendant’s history of violations of supervised release pre-
pared by the probation service, that she had participated in
the defendant’s first revocation hearing.
     Section 455(b)(3) of the Judicial Code provides that a
judge “shall … disqualify himself ... where he has served in
governmental employment and in such capacity participated
as counsel, adviser or material witness concerning the pro-
ceeding or expressed an opinion concerning the merits of the
particular case in controversy.” “Proceeding” is defined to
include “pretrial, trial, appellate review, or other stages of
litigation.” 28 U.S.C. § 455(d)(1). For purposes of this case, at
least, “proceeding” includes the entire sequence of the de-
fendant’s violations of supervised release, since the judge in
sentencing the defendant relied in part on his earlier viola-
tions.
    Because the record in this case was inadequate to enable
us to determine whether Judge Darrow had violated the Ju-
dicial Code, we decided to suspend our decision of the ap-
peal pending receipt from the parties of supplemental briefs,
which we asked them to file, addressing the applicability of
section 455(b)(3) to her participation in this litigation. Those
briefs have now been submitted and the issue of disqualifi-
cation is ripe for resolution.
    The government acknowledges that Judge Darrow in-
deed violated the Judicial Code by failing to disqualify her-
self; the language of the statute is clear and clearly applica-
ble to her. The defendant’s brief acknowledges his counsel’s
“strategic decision” not to complain about the violation on
appeal, but argues that it was only after our opinion on the
merits of the appeal expressed doubt about the severity of
the sentence (while concluding that Judge Darrow had not
4                                                    No. 14-2223


committed a reversible error in sentencing the defendant to
15 months in prison) that it occurred to counsel that the
judge might have been influenced, consciously or uncon-
sciously, by her earlier prosecutorial involvement with the
defendant. Ordinarily a decision not to raise an issue is a
waiver, barring further judicial review. However, a ground
for disqualification that is specified in 28 U.S.C. § 455(b)—
and the possible ground in this case is, as we noted, speci-
fied in section 455(b)(3)—cannot be waived. 28 U.S.C.
§ 455(e).
     The government acknowledges as we said the judge’s
statutory violation but argues that it was harmless—that her
involvement in the case as a prosecutor “was minimal”: “she
appeared only once, and her appearance then was strictly
pro forma; it involved virtually no substantive decision-
making. At most, she requested temporary detention pend-
ing a detention hearing, which she did not handle.” But the
government does not indicate the source for its description
of her involvement. The revocation hearing in which she
participated occurred four years ago. There appears to be no
written record of what she did or said or heard during the
hearing, and the government has not told us whose memory
it’s relying on in telling us that her participation “was strict-
ly pro forma.”
    Tellingly, the government does not say that AUSA Dar-
row did not discuss the case with other members of the U.S.
Attorney’s office. For all we know, in preparation for the
hearing she discussed the defendant and his misdeeds at
length with other members of the office. And the govern-
ment’s statement that her appearance at the hearing was
“strictly pro forma” is false. The docket sheet states that at the
No. 14-2223                                                    5


hearing the government in the person of AUSA Darrow
asked the judge to jail the defendant pending a further hear-
ing on the charge of violating supervised release. There was
nothing pro forma about that. And the government does not
really believe that her participation was pro forma, for if it
were there would be no violation of section 455(b)(3), United
States v. Ruzzano, 247 F.3d 688, 695 (7th Cir. 2011)—yet the
government concedes the violation.
    Later of course the defendant committed additional vio-
lations of supervised release, winding up in front of Judge
Darrow. In imposing a 15-month sentence she commented
on the defendant's history of noncompliance with conditions
of supervised release, and on the disappointment that she
was experiencing on behalf of her predecessor, Judge
McDade, who had given Smith various breaks during his
appearances before him on charges of violating supervised
release.
    So we have a situation in which a prosecutor who advo-
cates against a particular defendant later sentences him to
prison, albeit for subsequent though related violations—
sufficiently related that she referred to the prior violations as
influencing the sentence she imposed. One might say that
the judge was finishing the work of the prosecutor she had
been. Judge Darrow has said nothing about her participation
as a prosecutor in that earlier proceeding against the de-
fendant, however, and we do not suggest that she remem-
bered it. But the possibility that a conscious or (more likely,
we think) an unconscious recollection influenced the sen-
tence she imposed cannot be excluded. The defendant had
been accused of a more serious violation of supervised re-
lease in the earlier hearing, had been treated leniently by the
6                                                    No. 14-2223


judge, yet had continued violating supervised release, and
the possibility that this history exerted an influence on the
current sentence cannot be rejected on the basis of the gov-
ernment’s casual assertions. A “risk of undermining the pub-
lic’s confidence in the judicial process”—a proper considera-
tion when deciding on the appropriate remedy for a viola-
tion of the Judicial Code, see Liljeberg v. Health Services Acqui-
sition Corp., 486 U.S. 847, 864 (1988)—is present. In order,
therefore, to dispel any possibility of an injustice stemming
from the judge’s violation of the Code, we have decided to
vacate the judgment and remand for a do-over of the sen-
tencing proceeding before a different district judge.
                                                    SO ORDERED.
