United States v. Santiago Gutierrez-Ceja , 711 F.3d 780 ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1388
U NITED S TATES OF A MERICA,
Plaintiff-Appellee.
v.
S ANTIAGO G UTIERREZ-C EJA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 11 CR 362—James B. Zagel, Judge.
S UBMITTED F EBRUARY 25, 2013—D ECIDED M ARCH 29, 2013
Before P OSNER, W ILLIAMS, and SYKES, Circuit Judges.
P OSNER, Circuit Judge. The defendant pleaded guilty to
being in the United States illegally after having been
removed. The judge sentenced him to 84 months in
prison. The statutory maximum prison sentence for
illegal reentry is usually 2 years, 8 U.S.C. § 1326(a), but
removal after conviction for an aggravated felony (the
defendant had two such convictions) jacks up the maxi-
mum to 20 years. § 1326(b)(2). The defendant has
2 No. 12-1388
appealed, but his lawyer asks to be allowed to with-
draw from the case on the ground that there is no
colorable basis for appealing. Anders v. California, 386
U.S. 738 (1967).
The request is surprising because the lawyer’s brief
states that “the written Judgment [the sentence] included
terms that may have been outside the district court’s
authority to impose.” Indeed it did. But the brief goes on
to state that “it appears unlikely that [those terms] will
ever be enforced. As such, they are, at most, merely
harmless error. In the alternative, if they must not
remain in the Judgment, they are the type of error that
this Court may excise directly, without disturbing the
rest of what is an otherwise reasonable sentence.
Therefore, it would be frivolous to argue on direct
appeal that [the] case must be remanded because of an
unlawful sentence.”
The lawyer is wrong in saying that the terms in
question “may” have exceeded the court’s authority and
in describing them as “merely harmless errors.”
In imposing sentence the district judge said: “I’m
not imposing supervised release[,] because [the
defendant is] going to be deported after this occurs.” Yet
the written judgment, under the heading “additional
imprisonment terms,” states that upon release from
prison “the defendant is to be surrendered to a duly
authorized official of the Department of Homeland Secu-
rity for a determination on the issue of deportability”
and “if ordered deported, the defendant shall not re-
enter the United States without” authorization in ad-
No. 12-1388 3
vance. The judgment continues: “if not deported, the
defendant shall refrain from any unlawful use of a con-
trolled substance. The defendant shall submit to one
drug test within 15 days of release from imprisonment
and random drug tests thereafter, conducted by the
U.S. Probation Office, not to exceed 104 tests per year.
The defendant shall, pursuant to 18 U.S.C. Section 3583(d),
cooperate in the collection of a DNA sample.”
The DNA provision is an express condition of super-
vised release; so is submission to a drug test within
15 days of release; and so are the provisions in the
sentence relating to use of a controlled substance. The
conditions relating to deportation are independent of
supervised release and not challenged. But section 3583(d)
is the only possible ground for the other impositions
(refraining from use of a controlled substance and sub-
mitting to a drug test within 15 days of release) and
it requires an order of supervised release as a precondi-
tion to their imposition. As for submission to random
drug tests at the discretion of the probation office, it is
unclear whether section 3583(d) permits the judge in
an order of supervised release to leave the number
of drug tests up to that office. The statute requires the
defendant, after his first drug test (the one he is required
to take within 15 days after his release), to “submit to . . . at
least 2 periodic drug tests thereafter (as determined by the
court)”—not as determined by the probation service.
Our opinion in United States v. Bonanno, 146 F.3d 502,
511 (7th Cir. 1998) said that the court must determine
the number, but in United States v. Tejeda, 476 F.3d 471,
4774 (7th Cir. 2007), we suggested that it might “not be
4 No. 12-1388
error to grant the probation officer discretion to designate
testing which is incidental to the program,” provided
it was not unlimited discretion. We said that the condi-
tion of supervised release that the defendant “participate
in a program of testing and residential or outpatient
treatment for drug and alcohol abuse, as approved by
his supervising probation officer,” “until such time as he
is released from such program,” with no mention of
the specific number of drug tests that could be re-
quired, granted the probation office too much discre-
tion. Id. at 472-74.
But those were cases in which the judge had not men-
tioned a number at all; in this case he mentioned a maxi-
mum number per year. The case law indicates that specify-
ing a maximum number of tests is enough to comply
with the statute, United States v. Garcia, 522 F.3d 855,
861 (9th Cir. 2008); United States v. Padilla, 415 F.3d 211, 224
(1st Cir. 2005) (en banc); United States v. Melendez-Santana,
353 F.3d 93, 103 (1st Cir. 2003), and so, as we have held,
is specifying a maximum number of tests per year.
United States v. Guy, 174 F.3d 859, 862 (7th Cir. 1999). For
that’s really the same thing, since the overall maxi-
mum number is simply the maximum per year times the
number of years of supervised release—unless super-
vised release is imposed for the remainder of the defen-
dant’s life after his release from prison. In that event
specifying the maximum number per year may not
suffice, though we have found no cases addressing
the issue. It is not an issue in this case because the maxi-
mum term of supervised release that could have
been imposed on the defendant was three years. See 18
No. 12-1388 5
U.S.C. §§ 3559(a)(3), 3582(b). And even when lifetime
supervised release is ordered, a rough estimate of the
total number of tests to which the defendant is likely
to be subjected can be derived from longevity tables.
Allowing the sentencing judge to specify a maximum
number of tests rather than a specific number is sensible,
because the judge won’t have as good an idea of the
optimal frequency of the drug tests as the probation
service will. The rub here is that there was no order
of supervised release, and so there is no way to compute
the total number of tests to which the defendant might
be subjected. Maybe an annual estimate is good enough—
again we have found no cases addressing the issue—
but the issue is at least an arguable one.
The judge would have been entitled to impose all
the conditions he imposed had he ordered supervised
release, at least if he had specified the term of
supervised release. But in his oral sentence he expressly
declined to order supervised release and the written
judgment does not mention supervised release. The
oral sentence reflects the judge’s confident belief that
the defendant would be deported (“removed” is the
current legal term for “deported,” and we’ll use the
current term in the balance of this opinion) as soon as
he was released from prison. But the “additional impris-
onment terms” in the written sentence are premised
on the possibility that he won’t be removed promptly, or
maybe ever. A lot can happen in seven years, including
changes in immigration law, changes in the defendant’s
situation (marital, health, etc.), changes in conditions in
6 No. 12-1388
the country to which the defendant might be ordered
removed, and changes in enforcement policy. In addition,
orders of removal are frequently disobeyed unless
the person ordered removed is a prisoner and upon
completion of his prison term is taken directly from
prison to the plane that will fly him out of the United
States.
The suggestion by the defendant’s lawyer that the
judge’s error in imposing terms in the sentence that
are authorized only if the judge imposes supervised
release is harmless must assume that if we remanded
for resentencing, of course the judge would impose super-
vised release so that he could re-impose the addi-
tional terms that he thought appropriate. But maybe
not, since at the sentencing hearing he seemed confident
that the defendant would be removed immediately
upon completion of his prison term, making super-
vised release otiose. Maybe the “additional imprison-
ment terms” in the written sentence are boilerplate in-
cluded by accident. But all that matters is that we have
no authority to order a reversal in order to give the
judge an opportunity to impose a term of supervised
release—an additional sentence—when the government
has not filed a cross-appeal. Greenlaw v. United States,
554 U.S. 237 (2008).
But we can take the lawyer’s alternative suggestion
and “excise” the post-release terms, thereby modifying
the sentence, and affirm it as modified. United States v.
Ramirez, 675 F.3d 634, 639 n. 1, 646 (7th Cir. 2011) (per
curiam); United States v. McKnight, 665 F.3d 786, 795
No. 12-1388 7
(7th Cir. 2011); United States v. Munoz, 610 F.3d 989, 997
(7th Cir. 2010); United States v. Boyd, 608 F.3d 331, 335 (7th
Cir. 2010); United States v. Godoy, 2013 WL 425334, at *5
(D.C. Cir. Feb. 5, 2013); cf. Overstreet v. El Paso Disposal,
L.P., 625 F.3d 844, 857 (5th Cir. 2010). That gives the
defendant all the relief he could possibly obtain in a
fully briefed and argued appellate proceeding.
When in a criminal appeal the court of appeals notices
a plain error, it can reverse even if the appellant had
not drawn the error to the court’s attention, Greenlaw
v. United States, supra, 554 U.S. at 247; Silber v. United
States, 370 U.S. 717, 718 (1962) (per curiam); United States
v. Hampton, 585 F.3d 1033, 1044-45 (7th Cir. 2009);
United States v. Washington, 558 F.3d 716, 721 (7th Cir.
2009); United States v. Sealed Appellant 1, 591 F.3d 812,
819 (5th Cir. 2009); United States v. Gari, 572 F.3d 1352, 1360-
61 (11th Cir. 2009), and the present case is less ex-
treme. Although the Anders brief is wrong in calling the
district judge’s error in imposing post-release terms
harmless—it is a plain error—the brief does at least point
out that it was error.
In all but the rarest cases, the proper sequel to a deter-
mination that an Anders brief has identified a reversible
error is to set the case for full briefing on the merits,
both to give the government a chance to respond and to
give the defendant’s lawyer a chance to explore further
other possible grounds for reversal. Penson v. Ohio, 488
U.S. 75, 81-83 (1988). What makes this case unique, so far
as we’ve been able to determine, is that the error is so
patent that there is no response that the government
8 No. 12-1388
could make to it, and that the Anders brief, while wobbly
with respect to the error of imposing post-release condi-
tions in the absence of an order of supervised release,
adequately demonstrates the absence of any possible
ground of appeal other than the post-release condi-
tions. United States v. Tabb, 125 F.3d 583, 584-85 (7th Cir.
1997); United States v. Wagner, 103 F.3d 551, 553 (7th Cir.
1996). And the brief does identify their imposition as
error, even while mistakenly characterizing the error
as harmless.
In these circumstances we can achieve judicial
economy with no sacrifice of anyone’s legal rights by
modifying the judgment of the district court to
eliminate the post-release terms concerning the use of
controlled substances, drug tests, and collection of a
DNA sample, granting the lawyer’s motion to with-
draw, and, having corrected the judgment, dismissing
the appeal.
S O O RDERED.
3-29-13