Argued Dec. 3, 2013.
Bridget J. Domaszek, Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.
Daniel W. Stiller, Federal Public Defender, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, for Defendant-Appellant.
Before POSNER, MANION, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge.
The question presented by this appeal is whether a judge may, as a condition of supervised release, order the defendant to reimburse " buy money" dispensed by the government (and not recovered by it) in its investigation of the defendant.
The defendant was prosecuted for being a felon in possession of firearms. A confidential informant had bought three guns from him, for $400 apiece, with money supplied by the government. The purchases provided the essential evidence of the defendant's guilt, although the $1200 that the defendant had received from the confidential informant in payment for the guns— what is called " buy money" — was never recovered.
He pleaded guilty to being a felon in possession and was sentenced to 16 months in prison followed by 24 months of supervised release. As a condition of supervised release he was ordered to repay the buy money to the government at a minimum rate of $50 per month, which would enable him to repay the full $1200 in exactly 24 months. He could if he wanted pay more than $50 per month and so complete repayment of the buy money earlier.
We first upheld an order to repay buy money as a condition of supervised release in United States v. Daddato, 996 F.2d 903 (7th Cir.1993), and have followed Daddato in a number of cases, such as United States v. Anderson, 583 F.3d 504, 509 (7th Cir.2009); United States v. Gibbs, 578 F.3d 694, 696 (7th Cir.2009); United States v. Cook, 406 F.3d 485, 489 (7th Cir.2005);
and United States v. Brooks, 114 F.3d 106, 108 (7th Cir.1997), never questioning its validity. The other circuits have thus far skirted the issue. The majority opinion in United States v. Cottman, 142 F.3d 160, 170 (3d Cir.1998), holds (correctly as we'll see) that repayment of buy money is not restitution, but suggests that an order to repay is a proper fine; a separate opinion in the case regards, as do we, such an order as a permissible condition of supervised release (which is much the same as a fine equal to the buy money). The concurring opinion in Gall v. United States, 21 F.3d 107, 112-13 (6th Cir.1994), expresses disagreement with Daddato on the ground, which we find puzzling, that the order to repay " deprives the defendant of liberty during the period of supervised release." Id. at 113. And United States v. Gibbens, 25 F.3d 28, 36 and n. 9 (1st Cir.1994), notes the conflict between Daddato and the concurring opinion in Gall but does not take sides.
The defendant asks us to overrule our decisions allowing repayment of buy money to be made a condition of supervised release. He does not challenge any other provision of his sentence.
The Sentencing Reform Act of 1984 replaced federal parole with supervised release; the current provision is 18 U.S.C. § 3583. Both parole and supervised release impose restrictions on defendants after their release from prison. But the restrictions imposed by parole end when the term of imprisonment to which the defendant was sentenced ends; so if he was sentenced to five years in prison and released on parole after three years, the restrictions that parole imposes on him expire after two years. A term of supervised release is specified separately in the sentence; it is not a function of the prison term imposed by the sentence. There are limitations on the length of the term of supervised release, but they are a function of the gravity of the crime. See 18 U.S.C. § 3583(b).
The combined result of subsections (b) (length of supervised release), (c) (factors the judge must consider in deciding on the length and conditions of supervised release), and (d) (mandatory and optional conditions of supervised release) is that an order of supervised release has three key sections, though not necessarily distinguished as such. The first will specify the length of the term of supervised release. The second will list the mandatory conditions of supervised release, such as that the defendant not commit another crime during the term. And the third will list any additional conditions that the judge deems appropriate, subject to limitations specified in subsection (d). Repayment of buy money is in the third category, as buy money is not mentioned in the statute. The judge imposed it in this case without giving a reason, doubtless because our cases, beginning with Daddato, have held it to be an appropriate condition of supervised release.
The defendant challenges the imposition of this condition on several grounds. One is that it doesn't further any legitimate penological goal, specifically rehabilitation, which he stresses— indeed implies is the only goal, citing our decision in United States v. Goodwin, 717 F.3d 511 (7th Cir.2013). But Goodwin neither says nor implies any such thing. See id. at 521-22. And critically the defendant misses the ambiguity in the term " rehabilitation" (more precisely, " correctional rehabilitation" ) as used in discussions of criminal punishment. It often has rather utopian overtones— easing the defendant's transition to community life, making him a ...