United States v. Cutler, Chad V.

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 23, 2007
Decided January 17, 2008
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. RICHARD D. CUDAHY, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 07-2061
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of
Illinois.
v.
No. 97-CR-40018
CHAD V. CUTLER,
Defendant-Appellant. J. Phil Gilbert,
Judge.
ORDER
Chad Cutler suffers from a severe drug addiction. His current troubles began
in May 1997, when he was convicted of conspiracy to distribute cocaine base. He
served eight years in prison but never rid himself of his habit. Just two weeks after
he was released, Cutler violated the conditions of his supervised release; it was
ultimately revoked. At the revocation hearing (it would be the first of two), the
judge sentenced him to eight months in prison and another term of supervised
release. The judge also specified that Cutler should spend the first six months of
his supervised release in “an Intensive Drug Treatment Program.” When Cutler
was released, however, he was not placed in an inpatient program. Instead, he was
placed in “Level 1, outpatient” treatment. Basically, Cutler was released onto the
No. 07-2061 Page 2
street and he immediately relapsed. His supervised release was revoked again and
the district judge, apparently frustrated with Cutler’s inability or unwillingness to
stay clean, sentenced him to three years in prison. Cutler now appeals, claiming
that the sentence is unreasonable. He argues that the probation office’s failure to
provide him with inpatient drug treatment after his release was an “illegal
modification” of the terms of his release and should have been considered as a
mitigating factor in his sentencing. We do not believe that the sentence was plainly
unreasonable, and so we AFFIRM.
I. BACKGROUND
Chad Cutler pleaded guilty to conspiracy to distribute cocaine base on May
22, 1997. See 21 U.S.C. §§ 841, 846 (2006). He was sentenced to 101 months of
imprisonment and five years of supervised release. Cutler was released from prison
on February 2, 2005; he tested positive for drugs a week later. The Government
filed a revocation petition and, on February 24, 2006, Cutler's supervised release
was revoked for drug use, associating with a convicted felon, failure to submit
reports, failure to make fine payments and failure to participate in drug treatment.
Cutler admitted that he had a serious drug problem and asked the judge to provide
him with intensive treatment so he would have a chance to succeed on supervised
release. Cutler was sentenced to eight months of incarceration and thirty-six
months of supervised release, with the special condition that he spend the first six
months of supervised release in “an Intensive Drug Treatment Program.” While
serving the eight-month prison term, Cutler continued to use drugs.
Cutler was released to a second term of supervised release on September 26,
2006. For reasons that are unclear, Cutler was not placed in an inpatient
treatment program. Instead, the probation office scheduled Cutler for a substance
abuse evaluation on December 19, 2007. The appointment was subsequently
rescheduled, so the evaluation did not take place until January 5, 2007. The
probation office determined that Cutler required only “Level 1, out-patient”
treatment. In the meantime, Cutler had been out on the street. By January 5,
Cutler had already tested positive for drugs on three occasions.
The Government filed a second revocation petition on February 6, 2007. The
petition alleged that Cutler had violated the terms of his supervised release by
committing domestic battery, failing to notify the probation office of his arrest
within seventy-two hours, possessing illegal drugs and failing to participate in a
substance abuse program. Cutler appeared before the district judge on April 18,
2007 and admitted the allegations in the petition. Cutler admitted to either using
drugs or testing positive for drugs on October 5, 2006, November 3, 2006, December
5, 2006, January 5, 2006 and January 8, 2007. His possession of illegal drugs was
a Grade B violation that carried with it a sentencing range of eight to fourteen
No. 07-2061 Page 3
months under the U.S. Sentencing Guidelines. The Government requested the
statutory maximum of fifty-two months imprisonment with no supervised release.
The Government did not believe that Cutler was interested in rehabilitating
himself; it emphasized that Cutler had begun to use drugs immediately after his
release from prison and had failed to cooperate with his probation officer. Cutler
requested a sentence of time served and six months in a residential treatment
center. Cutler emphasized that probation had failed to give Cutler the tools
necessary for him to successfully rehabilitate himself. The district court responded
to this plea as follows: “Whether it’s Probation’s fault or not and whether my order
was followed or not is of no consequence if you have no desire to get off drugs and,
obviously, you don’t. You’re not even attempting to get off the drugs.” Cutler was
sentenced to thirty-six months in prison and sixteen months of supervised release,
again with the special condition that he spend the first six months of supervised
release in an intensive drug treatment program.
II. THE “ILLEGAL MODIFICATION” OF THE CONDITIONS OF RELEASE
Cutler’s first argument on appeal is that the probation office “illegally
modified” the conditions of his supervised release by placing him in an outpatient
drug treatment program.1 Cutler argues that the “modification” was illegal because
it failed to comply with the procedures laid out in Federal Rule of Criminal
Procedure 32.1 (Rule 32.1). This argument, however, is a nonstarter. Rule 32.1
regulates the procedures that the sentencing court must follow when it hears a
petition for clarification, modification or revocation of a term of supervised release.
It does not apply to the probation office. We believe that Cutler has simply
misunderstood the function and purpose of Rule 32.1.
We begin by clarifying the basic principles. The power to impose
special conditions of supervised release was created by statute and is clearly vested
in the sentencing court alone. See 18 U.S.C. § 3583(d) (2006) (“The court may order,
as a further condition of supervised release . . . any condition set forth as a
discretionary condition of probation . . . ”) (emphasis added). Not surprisingly, the
power to modify such conditions also lies with the sentencing court. See 18 U.S.C. §
1The parties assume that “intensive” treatment is synonymous with “inpatient” treatment.
The first revocation order required Cutler to participate in “Intensive Drug Treatment” but did
not specify what intensive treatment entailed. Perhaps the specifics were explained to the parties
by the district court at the original revocation hearing; such oral explanations may be considered
controlling. See United States v. Bonanno, 146 F.3d 502, 511 (7th Cir.1998). We do not know,
however, because we were not provided with a copy of the transcripts of the first hearing.
Because the parties do not question our assumption, we will simply assume that the call for
“intensive drug treatment” was a call for inpatient, residential care.
No. 07-2061 Page 4
3583(e) (2006) (“The court may . . . modify, reduce, or enlarge the conditions of
supervised release . . . pursuant to the provisions of the Federal Rules of Criminal
Procedure . . . ”) (emphasis added). The probation office has no power to “modify”
conditions under the statute, just as it has no power to “reduce” or “enlarge” those
conditions. The district court retains jurisdiction, and ultimate responsibility, over
the case. See United States v. Lilly, 206 F.3d 756, 762 (7th Cir.2000). What the
district court delegates to the probation office is simply the authority to enforce the
terms and conditions of supervised release. See United States v. Rearden, 349 F.3d
608, 619-20 (9th Cir.2003). This may require probation officers to exercise the
discretion with which they are generously endowed, provided their decisions are
“not inconsistent with the conditions specified by the court.” 18 U.S.C. § 3603(3)
(2006).
The question in this case is what happens when the probation office makes a
mistake. In fact, Congress anticipated that probation officers might err or act
unreasonably and it specified a remedy that a probationer might invoke in such
cases. See FED. R. CRIM. P. 32.1(b) advisory committee’s note (“in cases of neglect,
overwork, or simply unreasonableness on the part of the probation officer, the
probationer should have recourse to the sentencing court when a condition needs
clarification or modification”). That remedy is Rule 32.1, which permits a defendant
to seek a clarification or a modification of the terms and conditions of his release.
See, e.g., United States v. Monteiro, 270 F.3d 465, 472 (7th Cir.2001); Lilly, 206 F.3d
at 761-62; United States v. Sanchez-Berrios, 424 F.3d 65, 82 (1st Cir.2005); United
States v. Dempsey, 180 F.3d 1325, 1326 (11th Cir.1999) (per curiam). A clarification
might have been in order here, but Cutler never sought one. Beyond this, the
probation office’s error confers no rights on the probationer, although he has an
interest in seeing that the district court’s mandate is carried out properly.
III. IMPERMISSIBLE DELEGATION OF JUDICIAL AUTHORITY
Cutler’s first argument assumed that the district court ordered inpatient,
residential drug treatment but the probation office failed to implement the order.
Cutler also argues, in the alternative, that if the district court had intended to
delegate the choice of treatment programs to the probation office, such a delegation
would have been impermissible. This argument could be construed as a challenge to
the 2006 revocation order, which Cutler did not appeal, and so it may have been
forfeited. In any event, the argument fails. There was no impermissible delegation.
The basic principle is simple: “[W]here the court makes the determination of
whether a defendant must abide by a condition, . . . it is permissible to delegate to
the probation officer the details of where and when the condition will be satisfied.”
United States v. Stephens, 424 F.3d 876, 880 (9th Cir.2005) (emphasis in original).
We must first decide whether the district court made an unequivocal determination
No. 07-2061 Page 5
that Cutler should receive some form of drug treatment. To do so, we look at the
terms of the order and evaluate them “in light of the facts of the case as reflected by
the entire record.” United States v. Allen, 312 F.3d 512, 516 (1st Cir.2002). The
district court’s order provided as follows: “The defendant shall spend the first six
months of supervised release in an Intensive Drug Treatment Program.” It went on
to specify: “The defendant shall participate as directed and approved by the
probation officer in treatment for narcotic addiction, drug dependence, or alcohol
dependence . . . .” This language is mandatory and clearly required drug treatment.
See United States v. York, 357 F.3d 14, 21-22 (1st Cir.2004); Allen, 312 F.3d at 516.
The language “as approved by the probation officer” poses no problems; it simply
refers to the probation office’s power under the Guidelines to approve particular
treatment programs. See United States v. Taylor, 338 F.3d 1280, 1284 (11th
Cir.2003). Finally, while the language “as directed . . . by the probation officer” may
be a bit more ambiguous, we believe that the direction to drug treatment is clear in
the context of the order. Compare United States v. Nash, 438 F.3d 1302, 1307 (11th
Cir.2006) with Peterson, 248 F.3d at 85.
Cutler also argues that the district court impermissibly delegated to the
probation office the authority to determine what level of treatment he would
receive–inpatient treatment or outpatient treatment. Many courts, however, have
held that there are “details” that the court may delegate. See, e.g., Rearden, 349
F.3d at 619; Allen, 312 F.3d at 517. Cutler relies heavily on United States v.
Tejada, 476 F.3d 471 (7th Cir.2007). In Tejada, we held that the district court could
not delegate the authority to determine the number of drug tests to which a
probationer would be subject. See Tejada, 476 F.3d at 473. Cutler argues that the
rationale of Tejada should be extended to the question of inpatient versus
outpatient treatment. But the issue of treatment is quite distinguishable from the
issue of tests, which, if failed, can return the probationer to prison. Treatment
carries no such risk. The number and character of the tests are for the court but
the delegation of treatment details is not improper.
IV. THE SENTENCE WAS NOT PLAINLY UNREASONABLE
Finally, Cutler argues that his sentence was plainly unreasonable in light of
the probation office’s failure to provide him with inpatient treatment. At the second
revocation hearing, the district court calculated a Guidelines range of eight to
fourteen months for the most serious of Cutler's offenses, the possession of illegal
drugs. After allowing both Cutler and the Government an opportunity to speak, the
judge pronounced a sentence of thirty-six months. This Circuit has long held that a
sentence imposed for a violation of the terms of supervised release will not be set
aside unless it is “plainly unreasonable.” United States v. Carter, 408 F.3d 852, 854
(7th Cir.2005). This standard has been reaffirmed subsequent to Booker. See
United States v. Kizeart, 505 F.3d 672, 674 (7th Cir.2007). We have made it clear
No. 07-2061 Page 6
that the sentencing judge must consider the § 3583(e) factors. See Carter, 408 F.3d
at 854. The sentencing judge must also consider the policy statements contained in
§ 7B1.4 of the Guidelines. See United States v. Pitre, 504 F.3d 657, 654-55 (7th
Cir.2007). But the district court need not make specific factual findings about the
factors; it is sufficient if the record as a whole reveals that the district court
considered the factors, which is the case here. Id.The argument that the failure to provide treatment should have been a
mitigating factor has some statutory weight. When a defendant fails a drug test,
the court must consider “whether the availability of appropriate substance abuse
programs, or a defendant’s current or past participation in such programs, warrants
an exception” from the requirement of mandatory revocation and imprisonment.
U.S. SENTENCING GUIDELINES MANUAL § 7B1.3 cmt. n.6 (2004). We have also said,
in a slightly different context, that a district court must address substantial,
mitigating factors advanced by the defendant. See United States v. Cunningham,
429 F.3d 673, 679 (7th Cir.2005) (failing to address a substantial mitigating factor
may be cause for resentencing). But the district court did address Cutler’s
argument about mitigating circumstances. It explicitly noted that the probation
office’s error was irrelevant if Cutler had no desire to quit using drugs, and the
district court had plenty of evidence that would indicate that Cutler was not
interested in help. It cannot be said that the district court ignored a substantial,
mitigating factor.
The sentence was not plainly unreasonable. The nature of Cutler’s offense
was troubling because it involved the same conduct that landed him in prison in the
first place. The circumstances surrounding the offense were also not encouraging
because Cutler had again used drugs within days of being released from prison.
Indeed, Cutler may never have stopped using drugs in the first place; he admitted
that he had access to an intensive drug treatment program in prison but continued
to use drugs despite this. Evaluated in the light of Cutler’s past history with drugs,
the evidence suggested that Cutler had no desire to kick his habit. Cutler objects
that the judge focused too heavily on Cutler’s use of drugs in prison. This use,
however, was relevant. Finally, the district court calculated and considered the
appropriate range under the policy statements. Of course, the sentence the district
court handed down was well above that range, but we have often affirmed
revocation sentences that are far above the relevant Guidelines range. See, e.g.,
Carter, 408 F.3d at 853 (upholding twenty-four month sentence when policy
statements recommended six to twelve); United States v. Salinas, 365 F.3d 582, 585
(7th Cir.2004) (upholding twenty-four month sentence when policy statements
recommended three to nine). Given the extraordinarily aggravating circumstances
here and the “plainly unreasonable” standard, there was no error.
No. 07-2061 Page 7
V. CONCLUSION
For the reasons discussed above, we AFFIRM the decision of the district
court.