Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 87 CR 848--Susan Getzendanner, Judge.
Walter J. Cummings, Richard D. Cudahy and Richard A. Posner, Circuit Judges.
Richard D. CUDAHY, Circuit Judge.
Six years ago defendant Peter Makres pleaded guilty to sixteen counts of knowingly transporting falsely made or forged checks, in violation of 18 U.S.C. section 2314. At his sentencing hearing, Judge Getzendanner sentenced him to two concurrent one-year terms in the work release program at the Metropolitan Correctional Center (the "MCC") in Chicago. On the remaining fourteen counts, she sentenced him to concurrent terms of five years' probation, with the condition that he undergo psychiatric therapy.
The sentence seems mild, considering the crimes and Makres' twenty-two year history of repeated criminal activity. The judge recognized this at the time, saying that "this crime is a 15-year crime, with this record." United States v. Makres, Nos. 82 CR 834, 82 CR 848, 83 CR 8, transcript at 12 (Feb. 16, 1983) (hereinafter "1983 Transcript"); see also id., transcript at 14 (May 7, 1987) (hereinafter "1987 Transcript") (sentence was "incredibly lenient"). Indeed Makres' attorney called the sentence a "wonderful surprise." 1983 Transcript at 14.
The lenient sentence resulted from one unique circumstance. Makres' young stepson had a history of emotional problems and was in fact suicidal. The child's psychiatrist felt that the stepson would almost certainly kill himself in the absence of his father figure, the defendant. See 1987 Transcript at 14. Apparently for that reason alone Judge Getzendanner gave Makres probation on most of the counts.
The judge was not optimistic that Makres would stay out of trouble. See 1983 Transcript at 17 ("the probabilities of . . . Mr. Makres successfully completing the program are low"); id. at 21 ("I am not optimistic."). Still she felt the risk was worth taking. The offenses were non-violent, and the potential benefit of saving the child outweighed the possibility of further crimes. See id. at 17. The defendant was forty-seven years old in 1983. As his attorney acknowledged, Makres knew that if he violated his probation his sentence would be increased substantially; he would "spend the rest of his life behind bars." Id. at 15. He knew that this was his last chance. The judge told the parties that "if the defendant were to mess up again, the probation would easily and readily be revoked." Id. at 7.
In May 1985, while serving time at the MCC for an unrelated parole violation and while on probation from Judge Getzendanner, Makres failed to return from a furlough. On December 22, 1986, he was arrested in Birmingham, Alabama, and charged with possession of child pornography. The police seized photographs of the defendant engaging in explicit sexual conduct with his minor stepson. Judge Getzendanner revoked probation as to four of the counts and scheduled resentencing for May 7, 1987. At the resentencing, the judge sentenced Makres to consecutive ten-year terms, the statutory maximum, on three of the counts. On the final count, she added another five-year probation, consecutive to the jail term.
Makres appeals, asserting that a technical flaw in his original sentencing deprived the court of the power to resentence him when his probation was revoked. Judge Getzendanner, in her oral pronouncement of sentence, failed to state specifically that imposition of sentence was suspended on the counts for which she imposed probation. See id. at 18. This alleged defect was corrected in the written sentencing order. See Brief of Defendant-Appellant at A-4.
Some review of the governing statutes is necessary for an understanding of Makres' argument. The statute empowering courts to impose probation begins:
Upon entering a judgment of conviction of any offense not punishable by death or life imprisonment, any court . . . may suspend the imposition or execution of sentence and place the defendant on probation for such period and upon such terms and conditions as the court deems best.
18 U.S.C. § 3651 (1985). If the defendant violates a condition of his or her probation, "the court may revoke the probation and require him to serve the sentence imposed or any lesser sentence, and, if imposition of sentence was suspended, may impose any sentence which might originally have been imposed." 18 U.S.C. § 3653 (1985).
Makres argues that Judge Getzendanner did not suspend his sentence on counts II through V, the counts on which he was resentenced. The oral sentence prevails over a conflicting written sentencing order, see, e.g., United States v. Villano, 816 F.2d 1448, 1450 (10th Cir. 1987) (en banc), and Makres says the sentences conflict. If Judge Getzendanner had suspended imposition of sentence, then section 3653 would allow her on revocation of probation to impose "any sentence which might originally have been imposed." Because the sentence was not suspended, he contends that the judge could only properly sentence him under section 3653 to "the sentence imposed, or any lesser sentence." Thus, under Makres' reading of the statute, the punishment for revoking his probation is to put him back on probation. That outcome would give an aesthetically pleasing circularity to the proceedings, but would leave much to be desired from the perspectives of deterrence and punishment.
The argument is simple. It is also wrong, although why it is wrong (other than from the standpoint of common sense) may not be clear at first glance. A careful parsing of the relevant statutes, along with the case law interpreting those statutes, will clarify matters. Throughout the discussion, it might be helpful to keep in mind that we are construing silence. The district court did not say, "I ...