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,
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,
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,
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.