United States v. David Thompson ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1316
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID M. THOMPSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12-cr-30316-MJR-1 — Michael J. Reagan, Chief Judge.
____________________
No. 14-1521
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEREK ORTIZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10 CR 187-1 — Matthew F. Kennelly, Judge.
____________________
2 Nos. 14-1316, -1521, -1676, -1772
No. 14-1676
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHARLES BATES,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 CR 700-1 — Charles R. Norgle, Sr., Judge.
____________________
No. 14-1772
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOMINGO BLOUNT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 11 CR 415-1 — Gary S. Feinerman, Judge.
____________________
ARGUED NOVEMBER 13, 2014 — DECIDED JANUARY 13, 2015
____________________
Nos. 14-1316, -1521, -1676, -1772 3
Before POSNER, KANNE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. We have consolidated for decision
four appeals, heard on the same day, that present issues re-
lating to supervised release. In a recent opinion, United States
v. Siegel, 753 F.3d 705 (7th Cir. 2014), the court expressed
concern with how the district courts of our circuit are admin-
istering supervised release. To recapitulate briefly the fuller
discussion in the Siegel opinion, the Sentencing Reform Act
of 1984 replaced parole for federal crimes with supervised
release (to take effect in 1987). 18 U.S.C. § 3583. Parole of
federal convicts is granted (though nowadays only in a very
limited class of cases, see United States Parole Commission,
Wikipedia, http://en.wikipedia.org/wiki/United_States_Parole
_Commission (visited Jan. 11, 2015, as was the other website
cited in this opinion)) by an administrative agency after a
convicted defendant begins serving his sentence. An inmate
granted parole is thus released from prison before the expi-
ration of his term, but becomes subject to restrictions im-
posed by the agency on his conduct between his release and
when, had he not been paroled, he would have been re-
leased upon the expiration of his prison sentence. The re-
strictions are intended to reduce the likelihood of his com-
mitting crimes in the future.
Supervised release, in contrast to parole, consists of re-
strictions, imposed by the judge at sentencing, called condi-
tions or terms of supervised release, that are to take effect
when the defendant is released from prison and continue for
a specified term of years (which can be life). Parole shortens
prison time, substituting restrictions on the freed prisoner.
Supervised release does not shorten prison time; instead it
imposes restrictions on the prisoner to take effect upon his
4 Nos. 14-1316, -1521, -1676, -1772
release from prison. Parole mitigates punishment; super-
vised release augments it—most dramatically when the de-
fendant, having been determined to have violated a condi-
tion or conditions of supervised release, is given, as punish-
ment, a fresh term of imprisonment. 18 U.S.C. § 3583(e)(3).
Supervised release is required by statute in fewer than half
of cases subject to the sentencing guidelines. United States
Sentencing Commission, Federal Offenders Sentenced to Super-
vised Release 3 (July 2010), www.ussc.gov/sites/default/files/
pdf/training/annual-national-training-seminar/2012/2_Feder
al_Offenders_Sentenced_to_Supervised_Release.pdf. In the
other cases the sentencing judge has discretion to order or
not order it, see 18 U.S.C. § 3583(a), but almost always the
judge orders it in those cases too, United States Sentencing
Commission, supra, at 69–70, often without explaining why.
Although the defendants in our four cases object to particu-
lar conditions of supervised release imposed on them, they
do not challenge the propriety of the inclusion of some con-
ditions of supervised release in their sentences.
Supervised release as it is designed and administered has
turned out to be problematic in a number of respects. See,
e.g., Christine S. Scott-Hayward, “Shadow Sentencing: The
Imposition of Federal Supervised Release,” 18 Berkeley J.
Crim. L. 180 (2013); Fiona Doherty, “Indeterminate Sentenc-
ing Returns: The Invention of Supervised Release,” 88
N.Y.U. L. Rev. 958 (2013). One is that the list of conditions
required or suggested is very long. The supervised-release
statute, 18 U.S.C. § 3563(b), imposes 9 “mandatory” condi-
tions and 23 “discretionary conditions,” for a total of 32. The
sentencing guidelines get into the act as well, see U.S.S.G.
§ 5B1.3, imposing 10 “mandatory” conditions, 14 “standard”
conditions, and 13 “special” or “additional conditions”—a
Nos. 14-1316, -1521, -1676, -1772 5
total of 37. The statutory and guideline conditions, where
they overlap, are generally the same substantively, but their
wording often differs. Sentencing judges usually use the
guideline wording rather than the statutory wording. All but
the mandatory conditions are optional. And the judge is free
to add or substitute (except with regard to the mandatory
conditions) conditions of his own devising. Understandably,
given the number of conditions, many district judges simply
list the conditions that they impose, devoting little or no
time at sentencing to explaining them or justifying their im-
position.
Because conditions of supervised release do not take ef-
fect until the defendant completes his prison term and is re-
leased, defendants given long prison sentences—and long
prison sentences are common in federal sentencing—often
have little interest in contesting conditions of supervised re-
lease at sentencing. Criminals who court long prison sen-
tences tend to have what economists call a high discount
rate. That is, they give little weight to future costs and bene-
fits. Defendants or their lawyers may also worry that a suc-
cessful challenge to a condition or conditions of supervised
release may induce the judge to impose a longer prison sen-
tence, thinking that resistance to supervised release implies
recidivist tendencies or intentions. And often a defendant is
given no notice in advance of the sentencing hearing of the
conditions of supervised release that the judge is thinking of
imposing, which can make it difficult for his lawyer to pre-
pare arguments in opposition.
Many district judges appear to have overlooked the fact
that because the imposition of conditions of supervised re-
lease is part of the sentence, a sentencing judge is required
6 Nos. 14-1316, -1521, -1676, -1772
by the Supreme Court’s decision in United States v. Booker,
543 U.S. 220 (2005), to evaluate the propriety of any condi-
tions of supervised release that the judge is thinking of im-
posing, by applying to the proposed conditions the sentenc-
ing considerations listed in 18 U.S.C. § 3553(a). The consid-
erations include (in subsections (1), (2), and (3) respectively)
“the nature and circumstances of the offense and the history
and characteristics of the defendant,” “the need for the sen-
tence imposed,” and “the kinds of sentences available.”
Any doubt that conditions of supervised release are a
part of the sentence and subject therefore to the requirement
that the judge before imposing sentence apply the sentenc-
ing factors in section 3553(a) is dispelled by 18 U.S.C.
§ 3583(c). It provides that “the court, in determining whether
to include a term of supervised release, and, if a term of su-
pervised release is to be included, in determining the length
of the term and the conditions of supervised release, shall
consider the factors set forth in [eight enumerated subsec-
tions of] section 3553(a).” And being part of the sentence, the
imposition of conditions of supervised release is subject to
the further requirements that “the court, at the time of sen-
tencing, shall state in open court the reasons for its imposi-
tion of the particular sentence,” 18 U.S.C. § 3553(c), and “in
determining the length of the term and the conditions of su-
pervised release, shall consider the factors set forth in” eight
enumerated subsections of section 3553(a). 18 U.S.C.
§ 3583(c).
Subsection (a) of section 3553 lists the sentencing factors
that the judges are to consider in determining the sentence.
From the omission of subsection 3553(a)(2)(A), the court in
United States v. Murray, 692 F.3d 273, 280 (3d Cir. 2012), in-
Nos. 14-1316, -1521, -1676, -1772 7
ferred “that the primary purpose of supervised release is to
facilitate the reentry of offenders into their communities, ra-
ther than to inflict punishment.” The omitted subsection
(a)(2)(A) is “the need for the sentence imposed … to reflect
the seriousness of the offense, to promote respect for the law,
and to provide just punishment for the offense.”
The sheer number of conditions may induce haste in a
sentencing judge’s evaluation of the recommendations of the
probation officer assigned to the case as to what conditions
of supervised release to impose (if there are such recom-
mendations—often there are not; there are not in any of the
four cases before us) and is doubtless a factor in judges’ fre-
quent omission to mention any of the sentencing factors in
section 3553(a) or even any of the conditions recommended
by the parties or the probation officer that the judge decides
to include in the sentence.
And because conditions of supervised release, though
imposed at sentencing, do not become operational until the
defendant is released, the judge has to guess at the time of
sentencing what conditions are likely to make sense in what
may be the distant future. Conditions that may seem sensi-
ble at sentencing may not be sensible many years later, when
the defendant is finally released from prison. Although
nonmandatory conditions of supervised release can be mod-
ified at any time, 18 U.S.C. § 3583(e)(2), modification is a
bother for a judge, especially when, as is common in cases
involving very long sentences, it becomes the responsibility
of the sentencing judge’s successor because in the meantime
the sentencing judge has retired or died, resigned, or been
promoted. Furthermore, although reducing recidivism is the
purpose of supervised release, it is difficult, often impossi-
8 Nos. 14-1316, -1521, -1676, -1772
ble, to predict whether a defendant is likely upon release to
resume criminal activity. Often rehabilitation is named as an
additional purpose of supervised release, but being rehabili-
tated and going straight are as a practical matter synony-
mous.
Another wrinkle is that because conditions of supervised
release are imposed at sentencing, the conditions recom-
mended to the judge at the sentencing hearing may be a
product of negotiation between prosecution and defense.
The defendant’s lawyer may offer the prosecution a trade—
more supervised release for a reduced prison term—and the
prosecutor may agree. And when adversaries agree on the
outcome of a legal proceeding the sentencing judge, habitu-
ated as American judges are to adversary procedure, may be
reluctant to subject the agreement to critical scrutiny, even
though the law is clear that the fact that the prosecution and
defense agree on a sentence does not excuse the judge from
having to determine the sentence’s conformity to the statuto-
ry sentencing factors. Freeman v. United States, 131 S. Ct.
2685, 2692 (2011).
Still another problem is that probation officers, upon
whom district judges rely heavily for recommendations con-
cerning what conditions of supervised release to impose,
spend disproportionate time on enforcement (that is, inves-
tigating violations of conditions of supervised release and
recommending punishments for the violators) and have little
time left over for suggesting appropriate conditions and
helping the probationer to comply with them. This is a seri-
ous problem given the severe understaffing of the probation
service that we discussed in the Siegel opinion, 753 F.3d at
710, and the reliance that most district judges repose in the
Nos. 14-1316, -1521, -1676, -1772 9
recommendations of the probation officer assigned to the
case when the officer makes recommendations. A revocation
of supervised release and recommital to prison relieves the
probation service of monitoring the person during his term
of imprisonment. According to Scott-Hayward, supra, at 182
(footnotes omitted), “on average, one third of those individ-
uals [on supervised release] will have their supervised re-
lease revoked, most as a result of technical violations, and
receive, on average, a new prison sentence of 11 months.”
And finally a number of the listed conditions, along with
a number of conditions that judges invent, are, as we’re
about to explain, hopelessly vague. See also our Siegel opin-
ion, 753 F.3d at 712–16, for a fuller discussion of vagueness
and ambiguity in conditions of supervised release.
Given the problems we’ve enumerated, it is no surprise
that the administration of supervised release by the district
courts has not run smoothly. The types of oversights that
we’ll be discussing—well illustrated by our four cases—are
understandable, perhaps indeed inevitable, given the confu-
sion that the applicable statutory and guidelines provisions
have created.
We begin with United States v. Thompson. Thompson was
23 years old when he began an online relationship with a girl
of 14. They exchanged nude pictures of themselves. When
she was 16 and he 25 she decided to run away from home.
Thompson picked her up and drove her across state lines,
and they had sex in a state in which the age of consent was
16 and their sexual activity therefore legal. Convicted in fed-
eral district court of possession of child pornography, and of
traveling in interstate commerce for the purpose of engaging
in sexual conduct, in violation of federal laws that fix the age
10 Nos. 14-1316, -1521, -1676, -1772
of consent as 18 rather than, as in many states, 16, see, e.g.,
18 U.S.C. § 2423(a), Thompson was sentenced to 210 months
in prison. He does not challenge the prison sentence, but on-
ly conditions of supervised release.
Even with full credit for behaving himself in prison,
Thompson will be just days short of 41 years old when re-
leased, and it seems odd to be devising so far in advance re-
strictions to impose on him then; but that is how supervised
release operates. What is beyond odd—what is unauthor-
ized—is that the judge imposed a lifetime of supervised re-
lease without any articulated justification. The need for an
express justification was acute because, as the judge re-
marked, as a convicted sex offender Thompson will be sub-
ject after he is released from prison to a lifetime of mandato-
ry state and local sex-offender reporting quite apart from
supervised release. And sensible or not, the lifetime term is
vitiated by the fact that in imposing it the judge was laboring
under the misapprehension that, in his words, “a term of
supervised release can be reduced but can’t be extended.”
That’s wrong; it can be extended. 18 U.S.C. §§ 3583(e)(1)-(2);
Fed. R. Crim. P. 32.1(c).
It’s not that the judge thought that Thompson after being
released from prison will be a menace to young girls until he
dies perhaps as an octogenarian or even a nonagenarian. It is
rather, as the judge explained, that because the future cannot
be predicted, any term of supervised release shorter than life
would create a risk that Thompson would commit further
crimes at an advanced age. But should that risk seem acute
many years from now when Thompson completes his prison
term, a finite term of supervised release could be extended,
as the judge failed to understand. We are surprised that nei-
Nos. 14-1316, -1521, -1676, -1772 11
ther the government nor the defense pointed out the judge’s
error at the sentencing hearing.
The judge committed other errors. One was his failure to
include in the oral sentence a condition of supervised release
requiring that the defendant receive treatment for drug ad-
diction. Not because it’s a mandatory condition or one that
the judge would have been remiss in failing to impose, but
because, though he intended to impose it, it appears only in
the written judgment, and the oral sentencing, which omits
it, takes precedence over the written. United States v. Johnson,
765 F.3d 702, 710–11 (7th Cir. 2014); United States v. Alburay,
415 F.3d 782, 788 (7th Cir. 2005).
A more serious error was a condition of supervised re-
lease that Thompson not have “any contact with persons
under the age of 18 unless in the presence of a responsible
adult who is aware of the nature of the defendant’s back-
ground and instant offense and who had been approved by
the probation officer.” This can’t have been meant literally,
since understood literally it would include males under 18 as
well as females, though there is no suggestion that Thomp-
son is bisexual. Furthermore, even if males are excluded
from the no-contact rule, “contact,” being undefined, could
be understood to mean being served by a waitress, paying a
cashier, sitting next to a girl (a stranger) at a baseball game,
replying to a girl asking directions, or being shown a friend’s
baby girl—or his own baby, for that matter.
We have warned against imposing a restrictive condition
that is not reasonably related to the defendant’s “offense,
history and characteristics. … Moreover, given the potential-
ly severe restrictions on [the defendant’s] day-to-day life that
this condition imposes, the district court’s lack of explana-
12 Nos. 14-1316, -1521, -1676, -1772
tion of why it thinks this condition involves no greater dep-
rivation of liberty than necessary to achieve the penological
goals stated in 18 U.S.C. § 3553(a) is troubling. … Because
the district court has not provided any explanation of how
this condition is reasonably related to [the defendant’s] of-
fense and background or to the goals of punishment, involv-
ing no greater deprivation of liberty than is reasonably nec-
essary to achieve these goals, we vacate the condition.” Unit-
ed States v. Goodwin, 717 F.3d 511, 523–24 (7th Cir. 2013).
The judge in Thompson’s case imposed a total of 24 non-
mandatory conditions of supervised release. Because all
those conditions were part of the sentence, the judge was, as
we noted earlier in this opinion (as well as in Goodwin and
Siegel) not permitted to impose them without determining
their conformity to the sentencing factors in 18 U.S.C.
§ 3553(a). There is no indication that he did so. He just
checked boxes in a list of conditions. Some of the conditions
seem appropriate or innocuous, but others are either inap-
propriate or vague. Among the inappropriate ones is that the
“defendant shall support his or her dependents and meet
other family responsibilities.” Of course “or her” should not
be in there; its inclusion suggests the rote nature of the
judge’s imposition of conditions of supervised release. More
important, the condition assumes arbitrarily and maybe in-
accurately that should Thompson ever acquire dependents
he will have, despite being an ex-con subject to conditions of
supervised release and state and local sex-offender re-
strictions and reporting requirements, the resources neces-
sary to support his dependents.
Among the vague conditions is that “defendant shall re-
frain from excessive use of alcohol,” where “excessive use”
Nos. 14-1316, -1521, -1676, -1772 13
is not defined, though it could readily be defined, as we ex-
plained in United States v. Siegel, supra, 753 F.3d at 715–16.
Fatally vague is a condition forbidding the defendant to “as-
sociate with any person convicted of a felony, unless granted
permission to do so by the probation officer.” How would
the defendant know whether someone he was associating
with had ever been convicted of a felony? There is no stated
requirement that he know; the condition appears to impose
strict liability. If so, to protect himself he would have to
submit the name of any person he met to his probation of-
ficer to determine whether the name appeared in any data-
base of felons. Maybe liability for violating the condition
isn’t strict; so might it be enough that a reasonable person
would know that a person whom the defendant was associ-
ating with was a felon, even if the defendant didn’t know?
And what exactly is “association”? Is a single meeting
enough, or is the word intended to denote friendship, ac-
quaintanceship, or frequent meetings? What if a dependent
whom Thompson will be required to support when he is re-
leased from prison is convicted of a felony? Must he stop as-
sociating with that person as well? Would it not be more
sensible to scrap the quoted condition and instead forbid the
defendant “to meet, communicate, or otherwise interact with
a person whom he knows to be engaged, or planning to be
engaged, in criminal activity”?
The government offers the blanket defense that Thomp-
son waived any objection to the conditions of supervised re-
lease that the judge imposed. The judge had sent a list of the
conditions, with checkmarks next to the ones he was consid-
ering imposing, to the parties in advance of the sentencing
hearing and the government argues that this was the de-
fendant’s (more realistically, his lawyer’s) last chance to op-
14 Nos. 14-1316, -1521, -1676, -1772
pose them. But the judge didn’t indicate why he was think-
ing of imposing these conditions. A judge cannot properly
decide what sentence to impose without consideration of the
sentencing factors in 18 U.S.C. § 3553(a). If upon considera-
tion of these factors he decides that he’s leaning toward im-
posing particular conditions, he should inform the parties of
the conditions and the possible reasons for imposing them,
so that they can develop arguments pro or con to present at
the sentencing hearing. (It would likewise be a better prac-
tice for the presentence report to give reasons for any condi-
tions of supervised release that it suggests, but as we said
the presentence reports in these four cases did not suggest
any conditions of supervised release.) An alternative would
be for the judge to explain at the sentencing hearing what
conditions he was inclined to impose and why, and ask the
defendant’s lawyer whether he objects to any of them; if the
lawyer had a reasonable need for more time to decide
whether he has grounds for objection, the judge could ad-
journ the hearing.
Either of our suggested approaches would be a “best
practice,” which is different from a required practice; for ex-
cept with regard to conditions of supervised release not
listed in the statute or the guidelines, United States v. Bryant,
754 F.3d 443, 446 (7th Cir. 2014), no advance notice is re-
quired. Id. at 446–47; United States v. McKissic, 428 F.3d 719,
725–26 (7th Cir. 2005); United States v. Lopez, 258 F.3d 1053,
1055–56 (9th Cir. 2001); United States v. Barajas, 331 F.3d 1141,
1143–45 (10th Cir. 2003). This conclusion follows from the
Supreme Court’s decision in Irizarry v. United States, 553 U.S.
708 (2008). The district judge in that case had imposed a sen-
tence in excess of the sentence recommended in the presen-
tence report without prior notification to the parties. The
Nos. 14-1316, -1521, -1676, -1772 15
Supreme Court held that this lack of notice didn’t require
reversal.
But that holding is consistent with Barajas, where we read
that “there may be occasions when a defendant has a good
reason for not being prepared to address at sentencing the
imposition of a condition of supervised release listed in the
Sentencing Guidelines. In such a circumstance the district
court can exercise its sound discretion to grant a continu-
ance,” id. at 1145—though we would be inclined to substi-
tute “should” for “can” in the last clause of the quoted pas-
sage. For in Irizarry itself we read that
Rule 32(i)(1)(C) [of the Federal Rules of Criminal Pro-
cedure] requires the district court to allow the parties
to comment on “matters relating to an appropriate sen-
tence,” and given the scope of the issues that may be
considered at a sentencing hearing, a judge will nor-
mally be well advised to withhold her final judgment
until after the parties have had a full opportunity to
present their evidence and their arguments. Sentencing
is “a fluid and dynamic process and the court itself
may not know until the end whether a variance will be
adopted, let alone on what grounds.” … Sound prac-
tice dictates that judges in all cases should make sure
that the information provided to the parties in advance
of the hearing, and in the hearing itself, has given them
an adequate opportunity to confront and debate the
relevant issues. We recognize that there will be some
cases in which the factual basis for a particular sen-
tence will come as a surprise to a defendant or the
Government. The more appropriate response to such a
problem is not to extend the reach of Rule 32(h)’s no-
tice requirement categorically, but rather for a district
judge to consider granting a continuance when a party
16 Nos. 14-1316, -1521, -1676, -1772
has a legitimate basis for claiming that the surprise was
prejudicial.”
553 U.S. at 715–16. Because we’re remanding in Thompson’s
case, the defendant’s lawyer should be permitted to wait un-
til the sentencing hearing to present his objections to what-
ever conditions of supervised release the judge is minded to
impose.
We need to note an exception to our “best practice” sug-
gestion, however. Some conditions of supervised release are
administrative requirements applicable whenever a term of
supervised release is imposed, regardless of the substantive
conditions that are also imposed. Examples are requiring the
defendant to report to his probation officer, answer the of-
ficer’s questions, follow his instructions, and not leave the
judicial district without permission. Once the judge has ex-
plained why supervised release is necessary, he should be
permitted to impose the necessary incidents of supervision
without explanation. It is not correct, however, as has been
suggested, that all the standard conditions are “‘basic ad-
ministrative requirement[s] essential to the functioning of
the supervised release system.’” United States v. Truscello, 168
F.3d 61, 63–64 (2d Cir. 1999). To similar effect see United
States v. Tulloch, 380 F.3d 8, 13–14 (1st Cir. 2004). Most of
them are substantive rather than administrative.
So much for Thompson’s sentence; on to United States v.
Ortiz. This defendant pleaded guilty to three bank robberies
and was sentenced to prison for 135 months. Twenty-one
conditions of supervised release were imposed, all but one
to remain in force for three years after his release from pris-
on. As in Thompson’s case, the appeal does not challenge the
prison sentence but only conditions of supervised release.
Nos. 14-1316, -1521, -1676, -1772 17
The presentence report, prepared (as is normal) by the
probation officer assigned to the case, contained no suggest-
ed conditions of supervised release at all. Nor had the prose-
cution suggested any. They were sprung on the defendant at
the sentencing hearing, and with such brevity that we don’t
think his lawyer can be faulted for having failed to object.
The judge’s entire discussion of supervised release consisted
of the following sentence: “The conditions of supervised re-
lease will include the normal conditions, plus drug testing
up to the maximum that’s permitted, drug counseling and
treatment at the direction of the probation office, and mental
health counseling and treatment at the direction of the pro-
bation office, which may include taking necessary prescrip-
tion medications.” It’s not clear what the judge meant by
“normal conditions,” but the written judgment lists 3 man-
datory conditions (DNA collection, drug testing, and a pro-
hibition against committing further crimes), 13 standard
conditions (judges usually exclude from the guidelines list of
14 standard conditions the last one, which relates to the
payment of the financial obligations imposed by the sen-
tence; for some reason not known to us this requirement is
incorporated into another part of the standard form that is
issued to defendants when they receive their sentences), and
5 additional conditions (a firearm prohibition, a drug treat-
ment program, mental health counseling, a requirement that
the defendant report to the probation office within 72 hours
of his release from prison, and that he pay restitution). Far
from applying the sentencing factors in 18 U.S.C. § 3553(a) to
the conditions of supervised release that he was imposing,
the judge gave no reasons at all for any of the conditions.
The conditions imposed are riddled with ambiguities.
Example: “as directed by the probation officer, the defendant
18 Nos. 14-1316, -1521, -1676, -1772
shall notify third parties of risks that may be occasioned by
the defendant’s criminal record or personal history or char-
acteristics.” There is no indication of what is meant by “per-
sonal history” and “characteristics” or what “risks” must be
disclosed to which “third parties.” The defendant is to notify
his probation officer of any “change in … employment,” but
there is no indication whether change in employment just
means changing employers or also includes changing from
one position to another for the same employer at the same
workplace. The defendant is forbidden to “frequent places
where controlled substances are illegally sold, used, distrib-
uted, or administered,” but there is no requirement that he
know or have reason to know or even just suspect that such
activities are taking place. Nor is there any indication of how
many trips constitute “frequent[ing]” such places. Instead of
being forbidden to use a controlled substance he “shall have
no use of controlled substance,” a puzzling expression. And
he is required to pay substantial restitution (more than
$13,000) “at a rate of at least 10% of new monthly income,”
but there is no explanation of what “new” is meant to signi-
fy. Nor did the district court specify a penalty should the de-
fendant fail to pay the restitution ordered.
Ortiz’s counsel takes particular issue with two standard
conditions of supervised release that might be thought to
impinge on constitutional rights: that “the defendant shall
answer truthfully all inquiries by the probation officer” and
that he “shall permit a probation officer to visit him or her
[there is of course no “her” in the case] at any time at home
or elsewhere and shall permit confiscation of any contra-
band observed in plain view of the probation officer.” The
first of these conditions essentially asks for a waiver of the
right not to be forced to incriminate oneself, because the
Nos. 14-1316, -1521, -1676, -1772 19
condition would require the defendant to answer “yes” if he
were asked whether he had committed another crime and he
had. The second condition would allow the probation officer
to “visit” the defendant at 3:00 a.m. every morning and look
around for contraband, and also allow him to follow the de-
fendant everywhere, looking for contraband. Regardless of
any possible constitutional concern, both conditions are too
broad in the absence of any effort by the district court to ex-
plain why they are needed.
A number of decisions in other circuits brush aside ob-
jections to the breadth and ambiguity of the many conditions
of supervised release imposed by district judges. See, e.g.,
United States v. Phillips, 704 F.3d 754, 767–68 (9th Cir. 2012);
United States v. Zobel, 696 F.3d 558, 574–75 (6th Cir. 2012);
United States v. Albertson, 645 F.3d 191, 200–01 (3d Cir. 2011);
United States v. Mike, 632 F.3d 686, 696–97 (10th Cir. 2011).
However, in all those cases, and others that we might cite as
well, the court interpreted an overbroad or ambiguous con-
dition narrowly. For example, in Phillips after noting that the
district court had imposed “a condition prohibiting Phillips
from ‘frequent[ing] places where controlled substances are
illegally sold, used, distributed, or administered,’” a condi-
tion that Phillips contended on appeal was “’vague and
overbroad,’” the Ninth Circuit held that the condition “pro-
hibits Phillips from knowingly going to a specific place where
drugs are illegally used or sold, but … does not prohibit him
from … going to a given neighborhood simply because a
person is selling drugs somewhere within that neighbor-
hood.” 704 F.3d at 767–68 (emphasis in original). It is prefer-
able for the district court to specify limitations in a condition
of supervised release in the condition itself, rather than leav-
ing it to the appellate court to interpolate the limitations;
20 Nos. 14-1316, -1521, -1676, -1772
otherwise the defendant may think himself bound by the
broader interpretation. If you’re 90 percent certain that pur-
chasing girl-scout cookies from someone who rings your
doorbell wouldn’t violate a condition of supervised release,
do you want to risk going back to prison because you may
have guessed wrong? If out of caution therefore you decline
to purchase the cookies, the sentencing guideline will deter
lawful conduct, and thus be overbroad. Like any other part
of a criminal sentence, the conditions of supervised release
that are imposed should be clear.
That is one teaching of our Siegel decision and in addition
we believe and endeavored to make clear in that decision
that conditions of supervised release imposed in a sentence
require careful appellate consideration when the sentencing
judge fails to explain or justify or narrow ambiguous or in-
appropriate-seeming conditions and fails to apply the statu-
tory sentencing factors.
Our third case is United States v. Bates. The defendant
was sentenced to 188 months in prison for dealing in crack
cocaine. With regard to supervised release, the case is essen-
tially identical to Ortiz. No conditions of supervised release
were mentioned in the presentence report. The judge sprang
them on the parties in the sentencing hearing, imposing the
usual 13 standard conditions and five others (though for
eight years, rather than the three years in Ortiz’s case). He
gave no reasons for any of them. All he said was: “The
standard conditions are adopted by the Court” (actually, as
we just noted, not all of them). Our criticisms of the handling
of supervised release by the judge in Ortiz’s case are equally
applicable to Bates’s case.
Nos. 14-1316, -1521, -1676, -1772 21
In our final case, United States v. Blount, the defendant
challenges not only the conditions of supervised release but
also the prison sentence (300 months, for running an exten-
sive organization engaged in the sale of heroin), specifically
the four-level enhancement in the defendant’s base offense
level by reason of his being “an organizer or leader of a
criminal activity that involved five or more participants or
was otherwise extensive.” U.S.S.G. § 3B1.1(a). For the per-
suasive reasons given by the district judge and unnecessary
for us to repeat or amplify, the enhancement, and so the 300-
month sentence, were proper. As in our other three cases,
however, the district judge’s handling of supervised release
was seriously flawed.
There was again no discussion of any section 3553(a) fac-
tors that the judge may have thought justified the length and
conditions of supervised release. His discussion of the condi-
tions of supervised release that he was imposing on the de-
fendant is difficult even to understand. He listed only 8 con-
ditions, but said that the defendant “shall comply with the
standard conditions that have been adopted by this court,”
and the written judgment lists the 13 usual standard condi-
tions—with all their ambiguities uncorrected. The 8 condi-
tions he discussed are a mixture of mandatory and “addi-
tional” conditions.
Two of them are seriously questionable. One is that “if
[the defendant is] unemployed after the first 60 days of su-
pervision or if unemployed for 60 days after termination or
layoff from employment, he shall perform at least 20 hours
of community service work per week at the direction of and
in the discretion of the Probation Office until gainfully em-
ployed.” Taken literally, this means that if at, say, age 68 he
22 Nos. 14-1316, -1521, -1676, -1772
is unemployed, he will have to perform 20 hours of commu-
nity service per week—indefinitely (till he dies?). No doubt
the judge, if he thought about this condition, would not have
wanted it interpreted literally, especially since an application
note to U.S.S.G. § 5F1.3 states that “community service gen-
erally should not be imposed in excess of 400 hours.” The
judge did not mention that application note, and the gov-
ernment is incorrect when it says in its brief that the judge’s
community-service condition “did not amount to the impo-
sition of more than 400 hours of service.” The judge placed
no limit on the amount of community service that the de-
fendant could be ordered to do.
Another unsound condition was that the defendant “ob-
tain his GED within the first year of supervision.” (The gov-
ernment’s brief mistakenly states that the judge merely or-
dered the defendant to “seek” his GED.) The GED is a bat-
tery of five tests; if you pass, you get a certificate roughly
equivalent to a high-school diploma (though try convincing
a prospective employer of the equivalence). There is no as-
surance of passing the tests, let alone within a year. There is
no means of “requiring” that a person pass the GED tests,
unless cheating is permitted. This is an example of an im-
proper condition of supervised release that could be fixed by
changing a single word, and would have been years ago if
the Sentencing Commission, the probation services, and the
judiciary paid closer attention to the precise scope and word-
ing of conditions of supervised release. We are mindful that
both the employment and GED conditions were upheld in
United States v. McKissic, supra, 428 F.3d at 724–25, but
against objections different from those that we have just ex-
pressed.
Nos. 14-1316, -1521, -1676, -1772 23
An added wrinkle is that the defendant was 39 years old
when sentenced; his prison sentence is (300 months ÷ 12 =)
25 years, though good-time credit could reduce the sentence
to just under 22 years; he will therefore be between 61 and 64
when he is released. The judge imposed a 10-year term of
supervised release for some though not all of the counts. For
others it was 3 years, although this would have consequenc-
es only if the 10-year counts were vacated, which we are not
doing.
The judge should have explained the need for a 10-year
term of supervised release to take effect when this defendant
is in his 60s. How likely is the defendant to reenter the hero-
in trade, or engage in other criminal activity, at that age? He
has a long criminal record but all related it seems to dealing
in heroin. He may be burned out by the time he’s released
from prison. To impose a 10-year term of supervised release
to take effect in 22 to 25 years requires justification; and
while the term can be modified at any time, a superior alter-
native might well be to impose at the outset a nominal term,
with the understanding (contrary to the error by the district
judge in Thompson’s case) that it can be extended, if that
seems needful, on the eve of the defendant’s completion of
his prison sentence.
The government in defending the conditions of super-
vised release imposed in these four cases relies not on case
law but rather on the proposition that the defendant can ask
the probation officer what a condition means, and the officer
will give him a sensible answer. This is some protection
against unreasonable or ambiguous conditions, but not
enough. It is too much like telling a defendant he’ll be on
supervised release until the probation officer decides he’s
24 Nos. 14-1316, -1521, -1676, -1772
been on it long enough, or that if he isn’t sure what is “ex-
cessive use of alcohol” he should ask the probation officer.
As a practical matter the terms of supervised release would
be determined not by a judge but by a probation officer ex-
ercising an essentially unlimited discretion (for example to
define “excessive use of alcohol”). The law doesn’t authorize
that. United States v. Tejeda, 476 F.3d 471, 473–74 (7th Cir.
2007). It’s true that probation officers are employees of the
federal judiciary, but so are law clerks and judges’ secretar-
ies, yet they are not allowed to decide the sentences of con-
victed defendants.
To conclude, in all four cases the judgments are reversed
and the cases remanded for resentencing. Although we find
no reversible error in the prison sentences treated in isola-
tion from the conditions of supervised release, we vacate the
entire sentences because reconsideration of those conditions
may conceivably induce one or more of the judges to alter
the prison sentence that he imposed.
REVERSED AND REMANDED.