                            In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 07-1397
UNITED STATES OF AMERICA,
                                               Plaintiff-Appellee,
                               v.

JUDIOUS A. KIZEART,
                                           Defendant-Appellant.
                        ____________
           Appeal from the United States District Court
                for the Central District of Illinois.
            No. 06-30037-001—Jeanne E. Scott, Judge.
                        ____________
   SUBMITTED AUGUST 29, 2007—DECIDED OCTOBER 10, 2007
                        ____________


  Before BAUER, POSNER, and FLAUM, Circuit Judges.
   POSNER, Circuit Judge. The defendant was ordered
reimprisoned for 20 months for violating the terms of his
supervised release imposed for a firearms offense. His
appointed counsel has filed an Anders brief arguing that
there is no nonfrivolous ground for an appeal. The defen-
dant’s supervised release was revoked because he com-
mitted a felony under Illinois law, and, as counsel acknowl-
edges, there is “plausible evidence” that his client indeed
committed the felony. Hence (as explained in an unpub-
lished order also issued today, which considers as well
additional issues discussed in the Anders brief) the appeal
2                                                 No. 07-1397

is frivolous—provided we adhere to this court’s position
that a sentence imposed after the revocation of supervised
release can be set aside only if it is “plainly” unreasonable.
   We reserved the question in United States v. Flagg, 481
F.3d 946, 949 (7th Cir. 2007). We explained that before
the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), our court and the other courts of
appeals as well had held that the standard of “plainly
unreasonable” was the applicable one, e.g., United States
v. Carter, 408 F.3d 852, 854 (7th Cir. 2005), but that after
Booker five of the courts had decided that the proper
standard was “unreasonable,” see, e.g., United States v.
Miqbel, 444 F.3d 1173, 1176 n. 5 (9th Cir. 2006); United States
v. Cotton, 399 F.3d 913, 916 (8th Cir. 2005); United States v.
Fleming, 397 F.3d 95, 99 (2d Cir. 2005), while two others
decided to adhere to “plainly unreasonable,” United States
v. Crudup, 461 F.3d 433, 437-39 (4th Cir. 2006); United States
v. Johnson, 403 F.3d 813, 816-17 (6th Cir. 2005), although
Johnson leaves open the possibility of reconsidering its
position.
  Until Booker the federal sentencing guidelines had been
mandatory rather than advisory—but not when the
sentence was imposed following revocation of super-
vised release. There were no formal sentencing guidelines
for such sentences, but only “policy statements” that
explicitly were merely advisory, U.S.S.G. ch. 7, pt. A,
Introductory Comments 1, 3(a); United States v. Carter,
supra, 408 F.3d at 854, and the Sentencing Reform Act
authorizes a court of appeals to set aside a sentence for
which there is no guideline only if the sentence is “plainly
unreasonable.” 18 U.S.C. §§ 3742(a), (b), (e)(4). Subsections
(a) and (b) were not invalidated in Booker; but section
3742(e), the section setting forth the standard of appellate
No. 07-1397                                                 3

review of federal sentences, was. 543 U.S. at 260. (Subsec-
tions (a) and (b) are similar to (e), but concern the criteria
for filing a notice of appeal rather than the criteria to be
used by the appellate court in deciding the appeal.) It is
because the “plainly unreasonable” standard for review
of nonguideline sentences appears in a subsection of
section 3742(e) (subsection (4)) that some courts of ap-
peals think that the “plainly unreasonable” standard no
longer governs appellate review of sentences imposed after
revocation of supervised release.
  This strikes us as an overbroad reading of the Booker
decision. Section 3742(e) places tight limits on appellate
review of guidelines sentences, limits designed to imple-
ment Congress’s decision (invalidated in Booker) to make
the guidelines mandatory. Nothing in either of the Court’s
majority opinions in Booker suggests that limiting ap-
pellate review of sentences not based on the guidelines is
needed to avoid the constitutional problem that required
the invalidation of parts of the Sentencing Reform Act
in order to save the rest of it. The constitutional problem
was that judges were basing sentences on facts that they
found—not a jury—and by a preponderance of the evi-
dence rather than by proof beyond a reasonable doubt.
The Court held that for sentencing grounded in such a
factfinding process to be mandatory violated the Sixth
Amendment. Changing the standard of appellate review
of guidelines sentences was necessary because the standard
made the guidelines mandatory in appellate proceedings,
complementing 18 U.S.C. § 3553(b), which made them
mandatory at the sentencing stage. Since there are no
guidelines for sentences for violating a condition of
supervised release, there was no occasion for the Court in
Booker to change the standard of appellate review of such
4                                                 No. 07-1397

sentences. The Court did not mention subsection (e)(4),
which governs the appellate review of nonguidelines
sentences, because its decision was concerned only with
guideline sentences.
  We are not disregarding a Supreme Court dictum
(though it would not be lèse majesté to do so), for apart from
the omission of a reference to subsection (e)(4), there is
nothing in the logic or language of the Booker majority
opinions to suggest that the Court was altering the statu-
tory standard of appellate review of sentences for violating
conditions of supervised release. The Court said that
“reasonableness standards [not standard] are not foreign to
sentencing law. The Act has long required their [not its] use
in important sentencing circumstances—both on review
of departures, see 18 USC § 3742(e)(3) (1994 ed.), and on
review of sentences imposed where there was no applica-
ble Guideline, see §§ 3742(a)(4), (b)(4), (e)(4).” United States
v. Booker, supra, 543 U.S. at 262 (emphasis added). The
citations that follow the quoted passage are to both stan-
dards, and there is nothing to suggest that the Court meant
to merge the two. The only ground for doing so would
be that the “plainly” unreasonable standard was uncon-
stitutional, and, to repeat our earlier point, there is nothing
in the language or reasoning of the Booker opinions to
suggest that. We shall therefore adhere to our ruling in the
Carter case requiring that a defendant who challenges his
sentence for violating supervised release show that the
sentence is plainly unreasonable.
  Realism, however, requires acknowledgment that the
practical difference between “unreasonable” and “plainly
unreasonable” is slight, perhaps even nil, so the tendency
to equate them, as in United States v. Sweeting, 437 F.3d
1105, 1106-07 (11th Cir. 2006) (per curiam), and United
No. 07-1397                                                   5

States v. Cotton, supra, 399 F.3d at 916, is understandable.
But as pointed out in United States v. Crudup, supra, 461 F.3d
437-39, the courts must respect Congress’s wish to cur-
tail appellate review of nonguidelines sentences sharply,
and so must seek to give meaning to the difference between
“unreasonable” and “plainly unreasonable.” The Crudup
opinion gives reasons for why a more limited scope of
appellate review is appropriate for such sentences: the
Sentencing Commission’s decision not to issue guidelines
implies that the sentencing court should have more than
usual flexibility in sentencing for violations of conditions
of supervised release, id. at 438; and the maximum sentence
is only five years, id. at 439 n. 8; 18 U.S.C. § 3583(e), and
the shorter the sentence, and hence the less there is at
stake, the fewer the layers of judicial review necessary to
satisfy the requirements of due process of law. Mathews v.
Eldridge, 424 U.S. 319 (1976).
  But still, while appellate courts understand and can
implement the difference between deferential and
nondeferential review, the making of finer gradations
within the category of deferential review strains judicial
competence, as we have often noted. School District of
Wisconsin Dells v. Littlegeorge, 295 F.3d 671, 674-75 (7th Cir.
2002); United States v. Hill, 196 F.3d 806, 808 (7th Cir. 2000);
Aegerter v. City of Delafield, 174 F.3d 886, 889-90 (7th Cir.
1999); Johnson v. Trigg, 28 F.3d 638, 643-44 (7th Cir. 1994).
The gradations exist formally: there is clear-error re-
view, substantial-evidence review, review for rationality
(as of jury verdicts, where the test is whether any rational
trier of fact could have arrived at the jury’s verdict),
arbitrary-and-capricious review, abuse-of-discretion
review, ultra-narrow review of credibility determinations
based on a witness’s demeanor, and more. But in most
cases, regardless of the formal gradation of deferential
6                                                 No. 07-1397

review, the appellate judges are merely giving the bene-
fit of the doubt to the trier of fact or other first-level
decision maker—how much benefit of the doubt depends
less on the formal standard than on the nature of the issue
and the institutional competence of the first-level decision
maker relative to that of the appellate court. So while we
must do our best to mark any gradations prescribed by
Congress, we cannot promise great success in the en-
deavor.
  Perhaps, however, we can borrow for the present class
of cases the narrowest judicial review we know, and that
is judicial review of the sanctions imposed by prison
disciplinary boards. Superintendent v. Hill, 472 U.S. 445, 455-
57 (1985) (the prison disciplinary board’s ruling must be
supported by a “modicum” of evidence, “some” evidence,
“any” evidence, or even just “meager” evidence); Scruggs
v. Jordan, 485 F.3d 934, 941 (7th Cir. 2007) (must cross a
“meager threshold”); Webb v. Anderson, 224 F.3d 649, 652
(7th Cir. 2000) (“some” evidence, “any” evidence, “modi-
cum of evidence,” “ ‘meager’ proof,” evidence just needs
to “ ‘point to the accused’s guilt’ ”; the standard of review
is “lenient”). Such sanctions must indeed be “plainly”
unreasonable to be set aside. Under that standard, the
appeal in this case is frivolous. The Anders motion is
therefore granted and the appeal dismissed.
No. 07-1397                                              7

A true Copy:
       Teste:

                       _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—10-10-07
