United States v. Jordan, Larry ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-2673
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LARRY JORDAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 03 CR 40053—J. Phil Gilbert, Judge.
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ARGUED OCTOBER 3, 2006—DECIDED MAY 11, 2007
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Before MANION, KANNE, and SYKES, Circuit Judges.
PER CURIAM. Larry Jordan was convicted and sen-
tenced to 262 months’ imprisonment and ten years’
supervised release after he pleaded guilty to conspiracy to
distribute and to possess with intent to distribute crack
cocaine. On appeal Jordan argues principally that the
condition of his supervised release requiring his participa-
tion in a drug or alcohol abuse treatment program is not
adequately justified because he does not use drugs or
alcohol. We affirm.
2 No. 05-2673
I. Background
Jordan’s presentence report (“PSR”) recommended an
imprisonment range of 262 to 327 months, after the
probation officer calculated a base offense level of 38 (for
an offense involving more than 1.5 kilograms of crack
cocaine), a two-level increase for possessing a dangerous
weapon during the commission of the offense, and a three-
level reduction for acceptance of responsibility. This
yielded a total offense level of 37. Jordan’s prior record
placed him in criminal history category III.
Jordan objected to the PSR, arguing that adopting the
probation officer’s findings and recommendations vio-
lated Blakely v. Washington, 542 U.S. 296 (2004), because
the enhancements applied in the PSR for relevant conduct
and possession of a dangerous weapon were not charged
in the indictment and therefore should not be applied to
enhance the sentence. In addition, he argued that he
should be held accountable for less than 1.5 kilograms of
crack. At sentencing the district court rejected Jordan’s
first argument and found him responsible for more than
500 grams of crack (not the higher amount in the PSR),
putting Jordan’s total offense level at 35 and his advisory
guidelines sentencing range at 210 to 262 months. The
court then sentenced Jordan to 262 months’ imprisonment,
followed by a ten-year term of supervised release. Among
other conditions of supervised release, the court ordered
Jordan to participate in a substance abuse treatment
program “as directed and approved by the Probation
Office,” and completely abstain from alcohol during
treatment.
II. Discussion
Jordan acknowledges that because his sentence of 262
months is within a properly calculated guidelines range, it
No. 05-2673 3
is presumed reasonable under United States v. Mykytiuk,
415 F.3d 606, 608 (7th Cir. 2005). He argues that the
rebuttable presumption of reasonableness adopted in
Mykytiuk essentially makes the guidelines mandatory,
contrary to United States v. Booker, 543 U.S. 220 (2005).
The Supreme Court has granted certiorari on the ques-
tion of whether Booker permits a guidelines sentence to be
presumed reasonable. See United States v. Rita, 177
F. App’x 357 (4th Cir. 2006), cert. granted, 2006 WL
2307774 (U.S. Nov. 03, 2006) (No. 06-5754). Even if the
Court were to hold that a rebuttable presumption of
reasonableness conflicts with Booker, Jordan’s sentence
would be assessed for reasonableness without any pre-
sumption, by reference to the sentencing factors in 18
U.S.C. § 3553(a). See Booker, 543 U.S. at 261-62, 264;
United States v. Nitch, 477 F.3d 933, 937-38 (7th Cir.
2007); United States v. Dean, 414 F.3d 725, 728-31 (7th
Cir. 2005). Jordan has failed to develop an argument that
his sentence is unreasonable when considered under the
§ 3553(a) factors; we see nothing unreasonable, in light of
those factors, about the 262-month sentence imposed here.
Jordan also challenges his sentence on the ground that
the district court refused to account for the disparity
between guidelines ranges for crack offenses and powder
cocaine offenses. Jordan did not raise this issue in the
district court and acknowledges that he cannot currently
meet the test for plain error in this circuit; we have
consistently rejected post-Booker challenges of this sort
to the 100:1 sentencing ratio between crack and powder
cocaine. See, e.g., United States v. Miller, 450 F.3d 270,
275 (7th Cir. 2006); United States v. Jointer, 457 F.3d 682,
686 (7th Cir. 2006); United States v. Lister, 432 F.3d 754,
762 (7th Cir. 2005); United States v. Gipson, 425 F.3d 335,
337 (7th Cir. 2005). Jordan is simply preserving the issue
for further review.
4 No. 05-2673
Jordan next argues that the district court improperly
based his sentence on a prior conviction that was neither
contained in the indictment, proven to a jury beyond a
reasonable doubt, nor admitted to by him. Jordan admits
Almendarez-Torres v. United States, 523 U.S. 224 (1998),
forecloses the argument that his prior conviction ought to
have been found by a jury, but argues that subsequent
Supreme Court cases (Apprendi v. New Jersey, 530 U.S.
466 (2000), Blakely, and Booker) have undermined the
reasoning of Almendarez-Torres. We have repeatedly
observed that Almendarez-Torres remains valid until the
Supreme Court overrules it. See, e.g., United States v.
Stevens, 453 F.3d 963, 967 (7th Cir. 2006); United States
v. Browning, 436 F.3d 780, 782 (7th Cir. 2006) (noting that
continuing authority of Almendarez-Torres is not for this
court to decide).
Finally, Jordan challenges the condition of his super-
vised release requiring him to participate in a drug or
alcohol abuse treatment program and abstain completely
from alcohol during the program. He argues that this
condition is a greater deprivation of liberty than is rea-
sonably necessary for sentencing purposes because the
only evidence in the record about his drug or alcohol use
is his statement to the probation officer that he does not
use either. Again, Jordan failed to object to the imposition
of the special condition during his sentencing hearing; we
review this claim only for plain error. United States v.
McKissic, 428 F.3d 719, 721-22 (7th Cir. 2005).
The district court has discretion to require participa-
tion in substance abuse treatment as a condition of
supervised release if such a condition is reasonably related
to the nature and circumstances of the offense; the history
and characteristics of the defendant; and the need for
adequate deterrence, protection of the public, and effective
treatment. See U.S.S.G. § 5D1.3(b); McKissic, 428 F.3d at
No. 05-2673 5
722; United States v. Monteiro, 270 F.3d 465, 468 (7th Cir.
2001). The court must also ensure that such a condition
“involve[s] no greater deprivation of liberty than is reason-
ably necessary” to achieve sentencing goals. U.S.S.G.
§ 5D1.3(b). The sentencing guidelines recommend partici-
pation in a substance abuse treatment program where “the
court has reason to believe that the defendant is an
abuser of narcotics, other controlled substances or alco-
hol.” U.S.S.G. § 5D1.3(d)(4).
Given the nature of Jordan’s present offense and crimi-
nal history, we cannot say that the district court plainly
erred by imposing this condition of supervised release.
Prior cases in this circuit have established that drug or
alcohol treatment conditions are not necessarily reserved
only for individuals with extensive personal histories of
drug or alcohol abuse. See, e.g., United States v. Mayes,
370 F.3d 703, 711 (7th Cir. 2004), vacated on other grounds
by Jordan v. United States, 543 U.S. 1107 (2005), and
Clayton v. United States, 543 U.S. 1108 (2005); United
States v. Guy, 174 F.3d 859, 861-62 (7th Cir. 1999). We
note this is Jordan’s third drug-trafficking conviction. In
addition, the PSR discloses that on three separate occa-
sions Jordan was charged in Cook County, Illinois, with
possession of a controlled substance, suggesting posses-
sion of “personal use” amounts of drugs. Also, the dis-
trict court ordered participation in treatment “as directed
and approved by the Probation Office.” It is entirely
possible that when Jordan completes his lengthy prison
term, the Probation Office will find drug or alcohol treat-
ment unnecessary and decline to require him to partici-
pate. Under these circumstances, the test for plain error
is not met. See Mayes, 370 F.3d at 711.
However, the fact that the district judge gave no expla-
nation whatsoever for imposing this condition of super-
vised release is cause for concern and comment. We
remind district courts that drug or alcohol treatment
6 No. 05-2673
conditions of supervised release should not be imposed
simply by rote in all drug cases—or in any case, for that
matter. Instead, the record should reflect an exercise of
discretion based on the evidence and the applicable legal
standard. See generally United States v. Loy, 191 F.3d 360,
370-71 (3d Cir. 1999) (remanding for district court to
state reasons for imposing conditions of supervised re-
lease where district court’s lack of explanation left the
court unable to review abuse-of-discretion claim).
AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—5-11-07