                               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-40067-1 — Sara Darrow, Judge.
                     ____________________

   ARGUED OCTOBER 3, 2014 — DECIDED OCTOBER 27, 2014
               ____________________

   Before POSNER, ROVNER, and TINDER, Circuit Judges.
   POSNER, Circuit Judge. In 2009 the defendant was sen-
tenced to 24 months in prison, to be followed by 3 years of
supervised release, for being a felon in possession of a gun.
After being released from prison in 2011, he violated the
terms of his supervised release by failing to submit to ran-
dom drug tests, to attend substance-abuse treatment ses-
sions, and to report to his probation officer. The district
judge sentenced the defendant to five months in prison for
2                                                 No. 14-2223


these violations, and to an additional 30 months of super-
vised release. In 2012 the probation officer, while noting that
the defendant had generally done well on supervised re-
lease, reported that he had twice tested positive for marijua-
na. The officer suggested, and the judge ordered, modifica-
tions in the terms of supervised release. The modifications
consisted of requiring the defendant to serve 45 days of
home confinement with electronic monitoring. Later, after
the defendant had missed several drug tests, the judge or-
dered him to enroll in a mental health treatment program
because he’d told the probation officer that he didn’t know
why he was taking marijuana but was “weak in spirit, de-
pressed, and suffering anxiety.”
    To summarize a confusing sequence of events: 1. Smith
finishes his five months in prison for violating supervised
release and starts his new supervised-release term of 30
months. 2. During the new period he tests positive for mari-
juana twice and admits to using marijuana regularly—for
this he is punished with 45 days of home confinement. 3. He
tests positive again right after the 45-day home confinement
begins, then tests negative ten times in a row and mental
health treatment is added to his conditions of supervised re-
lease.
    That isn’t the end of our story. The following year (2013),
the probation officer advised the district judge that the de-
fendant had committed five traffic offenses, all in one day.
The judge revoked the defendant’s supervised release but
offered him a choice between a five-month sentence of im-
prisonment followed by two or more years of supervised re-
lease, or 14 months’ imprisonment with no supervised re-
lease. He chose the first option, and the judge sentenced him
No. 14-2223                                                 3


to five months’ imprisonment plus two years of supervised
release.
    He was released from prison in October 2013 and in
April of this year his probation officer advised the district
court that the defendant had again violated terms of his su-
pervised release both by continuing to use marijuana and by
violating rules of the halfway house where he lived for a
time after completion of his prison sentence. Although the
recommended custody range for these infractions of the
terms of his supervised release was only 5 to 11 months, the
government, at the behest of the probation service, asked for
15 months. Defense counsel suggested six months with con-
tinued supervision or eight months with no further supervi-
sion. He pointed out that the defendant was now 24 years
old with three small children, and that employers for whom
he had worked during the previous two years had been im-
pressed by his work ethic and would be glad to hire him
back after he was released from prison. The district judge
(Sara Darrow, not the judge—Joe Billy McDade—who had
dealt with the defendant previously), describing the case as a
difficult one, added that the defendant had a bank account
and actually paid his bills. So he had in her words “great
foundations and necessary foundations for you to start being
a man.” But, she added, “I can’t ignore the fact that you were
given an opportunity already after you had violated super-
vised release, and you were given help … . And I can’t go
back. I can’t take steps back. There hasn’t been enough … . If
you hadn’t violated, or if … your conduct on this newest
term, or most recent term of supervised release was other-
wise exemplary, but for these two positive UAs [urinalysis
tests for drugs], I might be willing to give you a little bit
more benefit of the doubt … . I cannot ignore the fact that
4                                                  No. 14-2223


you were given a huge break last time around by Judge
McDade, and you let him and the Court down. I can’t go
back and give you less than the option than [sic] you had
back then. I think that would denigrate the seriousness of
these violations, and of the chance you were given. It would
promote disrespect for the law, and it would not be an ade-
quate deterrent from [sic] your future conduct.” She sen-
tenced him to 15 months in prison but no more supervised
release.
    The defendant argues that Judge Darrow did not exercise
discretion in sentencing him, but rather was “constrained by
a sentence suggested by a different district court judge at a
previous revocation proceeding,” and that “this predetermi-
nation of a sentence deprived [the defendant] of his right to
Due Process[;] and the district court’s failure to exercise dis-
cretion is reversible error.”
    We’ve said that “a judge can’t be allowed, when impos-
ing conditions of probation (or of supervised release), to
commit himself to a specified penalty should there be a vio-
lation or violations. The number and gravity of any viola-
tions that are committed would be germane to any rational
judgment on whether to revoke probation and, if it is re-
voked, what punishment to impose for the violations. Any
significant changes in the defendant’s situation, such as
mental deterioration, would have to be considered as well.
We don’t think a judge can be permitted to disable himself
from considering such factors by committing himself in ad-
vance to a specified for any violation of probation, commit-
ted at any time, under any circumstances.” United States v.
Tatum, 760 F.3d 696, 697 (7th Cir. 2014). And by the same to-
ken we don’t think a successor judge can be permitted to
No. 14-2223                                                  5


commit himself in advance to imposing the same sanction
imposed by his predecessor.
    But that’s not what Judge Darrow did. The fact that the
defendant’s supervised release had twice been revoked was
something the judge was free, maybe required, to consider
in deciding what sentence to impose for a third set of viola-
tions. That third set hadn’t been very serious, judging from
the recommended sentencing range of 7 to 11 months. But
the judge was entitled to go above it in light of the defend-
ant’s earlier violations of supervised release. And she went
only 4 months above the range. She could have sentenced
him to 24 months instead of 15.
     That doesn’t mean that we have to be happy with the
sentence. The defendant’s problem is marijuana (he admits
it’s a problem), and quite apart from the issue, which is none
of our business, whether personal use of marijuana should
be illegal, we have our doubts that imprisonment is an ap-
propriate treatment for a marijuana habit. (There is no sug-
gestion that the defendant deals, or has ever dealt, in mariju-
ana or any other illegal drug; he’s just a consumer.) The 29
months that he served in prison beginning in 2009 did not
break him of his habit; what is the basis for thinking that 14
more months in prison will? Maybe with a job and a family
and greater maturity he’ll outgrow it, or reduce his con-
sumption to a level at which it has no significant behavioral
or psychological ill effects. The fact that he’s impressed his
employers suggests that he can function even with the habit,
in which event it might have been better had the judge not
imposed a prison sentence but instead had ordered a stricter
regimen of treatment for the defendant’s drug habit. Poten-
tial employers are unlikely to hold a job open for 15 months,
6                                                 No. 14-2223


and there may be no vacancy for the defendant to fill when
he’s released. Nevertheless we can’t say that the judge
abused her discretion in sentencing him as she did.
    We’re mindful of the defendant’s serious criminal record
as a youth, part of an unfortunate personal history that in-
cludes his father’s being imprisoned for murder and his
mother’s use of crack cocaine. By the time the defendant first
appeared before Judge McDade in 2009, age 18, he had a
criminal history that included battery, burglary, and fighting
with police officers. His gun offense was committed fewer
than two months after his felony burglary conviction. Re-
garding the gun offense, Smith admitted that he had been
paid by a crack dealer to store the (loaded) gun. He also ad-
mitted having allowed the crack dealer to use his mother’s
house for the sale of crack. But the defendant’s criminal ca-
reer, except for continued use of marijuana, ended five years
ago—which may be why Judge Darrow, in her sentencing
statement, mentioned only his continued use of marijuana.
    She may, however, at least have alluded to a serious con-
sequence, or serious consequences, of that use. One possible
allusion was to the five traffic offenses. She may have had
those in mind when she suggested that, had the defendant’s
conduct other than in testing positive twice for marijuana
been exemplary, she might have given him a lighter sentence
(maybe no jail time). The traffic offenses—three of which at
least were serious: driving under the influence, leaving the
scene of an accident, and resisting arrest—appear to have
been the result of the defendant’s being high on marijuana.
And while jail time is unlikely to cure a drug habit, as dis-
tinct from interrupting it, it may deter a defendant from us-
No. 14-2223                                                  7


ing drugs at times, such as before driving, that create a risk
of traffic violations potentially of criminal magnitude.
    Alternatively she may have been alluding to the viola-
tions that the defendant committed after the third revocation
of supervised release—testing positive for marijuana twice
and violating rules of the halfway house. For she referred to
his “conduct on this nearest term” of supervised release. She
may have decided that he was an incorrigible supervised-
release violator who had to be taught a lesson by a stiff pris-
on sentence. And that was her prerogative, whether as an
original matter we might think it unduly harsh and likely to
be ineffectual in breaking the defendant’s marijuana habit or
otherwise altering his behavior.
    There are two other issues—besides whether the judge
was (we think she was not) basing the 15-month prison sen-
tence that she meted out to the defendant on a belief that she
could not impose a lesser sanction for his violation of super-
vised release than Judge McDade had done—lurking in this
case. The first goes to the heart of supervised release. Before
the Sentencing Reform Act of 1984 replaced parole with su-
pervised release, the Parole Commission determined wheth-
er and when a prisoner would be released before the com-
pletion of the term to which he’d been sentenced. In making
that determination the Commission drew on observations by
prison personnel of a prisoner’s behavior in prison and what
that behavior augured for the likelihood that he would go
straight upon release. Supervised release puts the judge in
the awkward position of trying to predict the defendant’s
post-release conduct without the benefit of any observation
of his conduct in prison (since he may be free on bail until
he’s sentenced, and in any event will not have begun serving
8                                                  No. 14-2223


his sentence) and any other changes that may have occurred
since he was sentenced. For the terms of supervised release
are set at sentencing, though they can be modified later. The
tendency in sentencing, given the inability of the sentencing
judge to predict the future, is to err on the side of imposing a
scattershot of terms of supervised release—20 in this case,
some duplicative, some that can’t be complied with (in this
case, for example, that the defendant “shall not associate
with any person convicted of a felony”—how will the de-
fendant know whether a person he associates with has a fel-
ony conviction?—or that he “shall obtain a GED within the
first 12 months of supervision” if he doesn’t have one al-
ready; our defendant tried, but fell just short of succeeding).
    The most serious problem with the blizzard of super-
vised-release terms is that it conflates criminality with diso-
bedience. It’s not as if all terms of supervised release address
crimes. It’s not a crime not to get a GED, or to associate with
a felon. It remains a crime in most states to possess marijua-
na even in small (i.e., personal-use) quantities, though a
number of states now permit its use for medical purposes.
Possession of marijuana is also a federal crime, but federal
prosecution for possession of personal-use rather than dealer
quantities is rare. Legal change and prosecutorial discretion
to one side, public tolerance for marijuana has grown to the
point of making simple possession of it a radically underen-
forced crime. It’s been estimated that 38 percent of American
adults admit having tried marijuana at one time or another,
Gallup, “In U.S., 38% Have Tried Marijuana, Little Changed
Since ‘80s,” Aug. 2, 2013, www.gallup.com/poll/163835/
tried-marijuana-little-changed-80s.aspx (visited Oct. 12,
2013), and the percentage that have tried it (whether or not
willing to admit having done so) must be higher. The de-
No. 14-2223                                                  9


fendant disobeyed the terms of his supervised release re-
peatedly, but his current profile is not that of a dangerous
criminal, and the utility of his continued imprisonment is
difficult to see.
    Nevertheless for the reasons explained earlier we would
have no choice but to affirm the district court’s judgment,
though reluctantly, were it not for a document—surprisingly
mentioned by neither party—that we have discovered in the
record. The document is entitled “Violation Memorandum”
(the reference is to the violation of supervised release by the
defendant) and was prepared by the probation service. It is
dated February 18, 2011, shortly before the defendant was
sentenced by Judge McDade for his first violation of super-
vised release. The document states that the assistant U.S. at-
torney handling the revocation case was Sara Darrow. When
the report was prepared, she had already been nominated to
be a district judge, but she was not confirmed until August 2,
2011, almost six months later. The hearing at which Judge
Darrow sentenced the defendant was held on May 29 of this
year. We don’t know the precise extent of her involvement
in the 2011 revocation of supervised release. The docket
sheet reveals that she had appeared before the judge on Jan-
uary 7, 2011, for a hearing on the defendant’s first violation
of supervised release. We don’t know how extensive her
participation in that hearing was. Even if it was quite lim-
ited, anyone who plays a prosecutorial role in a case might
be considered ineligible to sentence the defendant in the
same case, even years later.
   We also do not know whether when assigned to the pre-
sent case in succession to Judge McDade on April 1, of this
year, or at the sentencing hearing in May, Judge Darrow had
10                                                  No. 14-2223


any conscious or unconscious memory of having been in-
volved in the earlier revocation. For that matter, we don’t
know whether the Violation Memorandum and docket entry
are accurate in associating her with the case. Still, on the bare
record, we cannot exclude the possibility that the sentence
was influenced by a recollection by the judge, perhaps
prompted by the defendant’s supervision history prepared
by the probation service, that she had participated in the de-
fendant’s first revocation hearing, a hearing at which Judge
McDade had imposed a relatively mild sentence—five
months in prison plus 14 months of supervised release—to
no avail.
     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, advisor 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.” United States v. Ruzzano, 247 F.3d 688, 695 (7th
Cir. 2011), holds that we can correct a clear violation of sec-
tion 455(b)(3) on appeal even if the defendant failed to in-
voke the statute in the district court.
   The present record is inadequate to enable us to deter-
mine whether there was such a violation. We have therefore
decided to suspend our decision of the appeal pending re-
ceipt from the parties of supplemental briefs addressing the
applicability of section 455(b)(3) to Judge Darrow’s partici-
pation in this litigation. We ask that the briefs be submitted
within 30 days of the date of this opinion.
