In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1421

U NITED S TATES OF A MERICA,
                                                 Plaintiff-Appellee,
                                v.

JAMES R AY JACKSON,
                                             Defendant-Appellant.


        Appeal from the United States District Court for the
        Northern District of Indiana, South Bend Division.
        No. 3:02cr0055AS—Robert L. Miller, Jr., Chief Judge.



    A RGUED A UGUST 5, 2008—D ECIDED D ECEMBER 15, 2008




 Before P OSNER, C OFFEY, and M ANION, Circuit Judges.
  C OFFEY , Circuit Judge. After James Jackson violated the
terms of his supervised release resulting from two
drunk driving arrests, the district court proceeded to
revoke his release status and ordered him returned to
prison. Jackson challenges the length of the prison term
imposed after revocation of supervised release, arguing
that the district court erred in determining that a felony
2                                                    No. 08-1421

DWI is a crime of violence. See U.S.S.G. § 7B1.1(a).1
Because the district court made clear that it would have
imposed the same prison term upon him regardless of
whether his DWI was classified as a crime of violence
or not, we affirm.
  In 2002 Jackson pleaded guilty to using a firearm while
committing a drug-trafficking crime, see 18 U.S.C.
§ 924(c)(1)(A), and was sentenced to 60 months’ imprison-
ment to be followed by two years of supervised release.
In June 2006 Jackson was released from confinement and
began serving his term of supervised release. As a con-
dition of his supervised release, Jackson was prohibited
from committing any crimes and was to “refrain from
excessive use of alcohol.” It did not take long for him
to violate these conditions. In November 2006 he was
arrested in Indiana for (and later pleaded guilty to) a
misdemeanor count of driving while intoxicated. In
2007 Jackson again pleaded guilty in Indiana to driving
while intoxicated, and at that time his conviction
was classified as a felony. See IND. C ODE § 9-30-5-3.
  In May 2007 the district court granted the govern-
ment’s motion and revoked Jackson’s supervised release.
Jackson was taken into custody. Jackson stipulated that



1
   After Jackson filed his brief on appeal, the Supreme Court
issued its opinion in Begay v. United States, 

, 1583
(2008), holding that a DWI is not a violent felony. Recently
we followed this holding and determined that a DWI is not a
crime of violence. See United States v. Templeton, 

,
380 (7th Cir. 2008).
No. 08-1421                                                   3

he violated the terms of his supervised release,
including several terms in his stipulation that are
relevant to the calculation of the recommended range
in the sentencing guidelines for additional imprisonment
after revocation of supervised release. 2 The range is
based on three factors: (1) the severity of the supervised-
release violation, (2) the defendant’s criminal history
category when he was sentenced for the underlying
offense, and (3) whether that underlying offense was a
Class A felony. U.S.S.G. § 7B1.4(a). In the stipulation
Jackson agreed that his original crime—using a firearm
while dealing drugs—was a Class A felony and that his
criminal history category at that time was II. Regarding
the final factor—the severity of his violation—the viola-
tions are divided into three grades. A crime punishable
by more than a year’s imprisonment is a Grade B viola-
tion, but it is a Grade A violation if it is a “crime of vio-
lence,” as defined in U.S.S.G. § 4B1.2(a) and its Application
Note 1. 

7B1.1(a)(1), Application Note
2, 7B1.4(a). The stipulation is silent about whether Jack-
son’s DWI is a crime of violence, but the stipulation



2
  The Sentencing Commission has established a Revocation
Table of recommended sentencing ranges for imprisonment after
violation of supervised release. See U.S.S.G. § 7B1.4(a). These
ranges, however, are advisory, thus the sentencing court “has
discretion to impose the sentence that it feels appropriate
within the statutory limits,” even if it falls outside of the
advisory range. United States v. Carter, 

, 854 (7th
Cir. 2005); see United States v. Kizeart, 

, 673 (7th
Cir. 2007).
4                                                No. 08-1421

does state that the appropriate guidelines range is 27 to
33 months. The government did agree that it would not
argue for more than 30 months’ additional imprison-
ment and that Jackson could argue for a shorter term.
  During Jackson’s revocation hearing, his attorney
suggested that the sentencing court impose a prison
term of between 6 and 12 months. He argued that
Jackson’s DWI conviction was not a felony crime of
violence and thus that, for purposes of calculating the
guidelines range, it should be classified as a Grade B
rather than a Grade A violation. At the time of Jackson’s
sentencing, the law in this circuit was that a DWI was a
crime of violence. See United States v. Sperberg, 

, 708 (7th Cir. 2005); United States v. Rutherford, 

, 376-77 (7th Cir. 1995). However, after Jackson
was sentenced, we followed the Supreme Court’s reason-
ing in Begay v. United States, 

, 1583 (2008),
and held that a DWI felony is not a crime of violence
for purposes of the sentencing guidelines. See United
States v. Templeton, 

, 380 (7th Cir. 2008).
  The prosecutor, relying on then-current precedent,
argued that a felony DWI was a crime of violence and
thus that it was a Grade A violation. He argued that
Jackson’s underlying offense—use of a firearm while
dealing drugs—was a serious crime, that Jackson had
been convicted of several felonies that had not been
taken into account in his criminal history score when he
was sentenced, and furthermore that his problem with
alcohol abuse is not unique. The prosecutor then asked
the court to accept the parties’ stipulation and impose a
No. 08-1421                                                 5

sentence of 27 to 30 months’ imprisonment after the
revocation of supervised release.
  The sentencing court found that Jackson’s felony DWI
conviction was a crime of violence, resulting in a guide-
lines range of 27 to 33 months’ additional imprisonment.
However, the court said that, even if DWI should be held
not to be a crime of violence by the Supreme Court, it
would impose the same sentence. The court explained that:
    THE COURT: I think there is—I have to consider the
    need for the sentence to protect the public from the
    Defendant. And given the driving while intoxicated,
    whether one wants to call it—regardless of what the
    Supreme Court decides as to whether it’s a violent
    felony, it certainly is a crime that threatens people, the
    safety of people, and so there is a significant need to
    protect the public from Mr. Jackson as long as he
    is drinking.
(R.T. 16-17.)
  The judge also mentioned several other factors he
considered including Jackson’s need for alcohol-abuse
treatment, the need for deterrence, Jackson’s history and
characteristics, the nature and circumstances of the
supervised-release violations and of the underlying crime,
as well as the need for proportionality in sentencing. The
court went on to comment that, after considering the
18 U.S.C. § 3553(a) factors, “I do think that the Guide-
lines have it about right with the 27 to 33 months” and
sentenced Jackson to a prison term of 27 months.
  This court will reverse a sentence for a violation of
supervised release only if the court order is plainly unrea-
6                                                No. 08-1421

sonable. See United States v. Neal, 

, 438 (7th
Cir. 2008). This standard is highly deferential, akin to
“narrowest judicial review of judgments” in the court’s
toolkit. United States v. Kizeart, 

, 675 (7th Cir.
2007) (likening this standard of review to the “some
evidence” standard applicable to review of sanctions
imposed by prison disciplinary boards).
  Jackson argues that his DWI felony should not be
considered a crime of violence because, he insists, the
elements of the crime “lack any conduct component that
creates any particular danger to anyone.” Thus, he con-
cludes, the district court should have used the Grade B
range as the starting point for the sentencing discus-
sion. As we have explained earlier, when Jackson was
sentenced, the law in this circuit was that a felony DWI
was a crime of violence for purposes of the sentencing
guidelines. See 

; 

. Two weeks after Jackson filed his brief,
however, the Supreme Court reversed the law deciding
that a DWI is no longer to be considered as a violent
felony under the Armed Career Criminal Act. See 

. Recently, complying with the Supreme
Court’s edict, we have held, following the case law set
forth in Begay, that a DWI is not a crime of violence for
purposes of the sentencing guidelines. See 

.
  But Begay and Templeton do not help Jackson because
the trial judge made clear that he would have imposed
the same sentence regardless of whether a felony DWI is
a Grade A or Grade B violation. See United States v. White,
No. 08-1421                                                 7

, 349 (7th Cir. 2008) (declining to remand
for resentencing after Kimbrough where district court
made a “firm statement” that it would have imposed
the same sentence even absent the guidelines); United
States v. Paulus, 

, 700 (7th Cir. 2005) (declining
to remand for resentencing where district court antici-
pated the decision in Booker and noted that it would
have imposed the same sentence whether the guide-
lines were mandatory or advisory). Observing that
“given the driving while intoxicated, whether one wants
to call it—regardless of what the Supreme Court decides
as to whether it’s a violent felony,” the court determined
that the crime threatens people’s lives and safety and
that “there is a significant need to protect the public from
Mr. Jackson as long as he is drinking.” The court thus
recognized the issue in Begay but concluded that the
Supreme Court’s decision would not change its view of
the appropriate prison term for Jackson. The court reiter-
ated its position when it later explained that, given all
of the sentencing factors, “I do think that the Guidelines
have it about right with the 27 to 33 months.”
  The district court adequately explained that based on
the Sentencing Commission’s policy statements and the
factors under 18 U.S.C. § 3553(a), it would have imposed
the same 27-month term of imprisonment after revoca-
tion of supervised release regardless of whether a DWI
was classified a “crime of violence.” See 

; United States v. Pitre, 

, 664 (7th Cir.
2007). The sentence that the court imposed after the
revocation of Jackson’s supervised release was not
8                                          No. 08-1421

plainly unreasonable. We A FFIRM both the judgment and
sentence imposed.




                        12-15-08