Submitted, April 14, 2015
Appeal from the United States District Court for the Southern District of Illinois. No. 3:12-cr-30248-MJR-5 -- Michael J. Reagan, Chief Judge.
For United States of America, Plaintiff - Appellee: Donald S. Boyce, Attorney, Office of The United States Attorney, Criminal Division, Fairview Heights, IL.
For Joshua Downs, Defendant - Appellant: Daniel G. Cronin, Attorney, Office of The Federal Public Defender, East St. Louis, IL.
Before POSNER, FLAUM, and ROVNER, Circuit Judges.
Posner, Circuit Judge.
The appellant, who had been sentenced in 2013 to
five years of probation for a drug offense, violated the terms of his probation
just over six months later by, among other things, causing an accident and a
resulting injury to another person by driving while drunk. At a hearing to
revoke his probation, the judge sentenced the appellant to a year and a day in
prison to be followed by ten years of supervised release. The appeal challenges
the length of the term of supervised release.
The district judge omitted to determine the guidelines range for supervised release applicable to the appellant's case. Because of the nature of his drug offense, the appellant had a statutory minimum term of supervised release of three years. 21 U.S.C. § 841(b)(1)(C). Three years was also the top of the supervised-release guidelines range applicable to his offense. U.S.S.G. § § 5D1.2(a)(2), (c). The interaction between the statutory and guidelines provisions made three years the applicable guidelines " range" (actually point). U.S.S.G. § 5D1.2, Application Note 6; see United States v. Gibbs, 578 F.3d 694, 695 (7th Cir. 2009). The judge was not bound by that ceiling--he could have (if circumstances warranted) sentenced the defendant to supervised release for life because there is no statutory ceiling on the length of supervised release for his offense. See 21 U.S.C. § 841(b)(1)(C). But he was required, before deciding on the length of the defendant's term of supervised release, to calculate the guidelines range and assess its appropriateness as a guide to sentencing the defendant, in light of the sentencing factors in 18 U.S.C. § 3553(a), and he failed to do these things.
In addition, the 22 conditions of supervised release that he imposed included more than a few that we have criticized in recent cases, such as that " the defendant shall not leave the judicial district without the permission of the court or probation officer," that he " shall support his or her dependents and meet other family responsibilities," that he " shall work regularly at a lawful occupation unless excused by his probation officer," that he " shall refrain from excessive use of alcohol" (with " excessive" undefined), that he " shall not associate with any persons engaged in criminal activity" or " any person convicted of a felony, unless granted permission to do so by the probation officer," that " he shall permit a probation officer to visit him or her at any time at home," and, in a confusing overlap with the alcohol condition that we quoted, that he " shall abstain from the use and/or possession of all alcoholic beverages and any other substance for the purpose of intoxication" --and it's impossible to tell whether " for the purpose of intoxication" applies to alcoholic beverage or just to " any other substance." See, e.g., United States v. Kappes, No. 14-1223, 782 F.3d 828, 2015 WL 1546810, at *14-18 (7th Cir. Apr. 8, 2015); United States v. Sewell, 780 F.3d 839, 851 (7th Cir. 2015); United States v. Thompson, 777 F.3d 368, 376-77, 379-80 (7th Cir. 2015); United States v. Siegel, 753 F.3d 705, 715-16 (7th Cir. 2014),
The government, in a perfunctory brief--the argument portion is only five pages long, with only 21 lines of type per page--concedes that the district judge erred in the super-vised-release part of the sentence but calls the error harmless because the judge would have imposed the same 10-year term of supervised release had he known that the top of the applicable guidelines range was only 3 years. Maybe he would have, but who knows? Judges are required to calculate the applicable
guidelines range before imposing sentence, though not bound to sentence within that range.
So the judgment must be reversed--and not just the ten-year term of supervised release. When a sentence consists of more than one form of punishment, such as prison, a fine, restitution, and supervised release, and one of the forms is as in this case altered by the appellate court, it cannot be assumed that the others should be unaffected. See United States v. Kappes, supra, [WL] at *31; United States v. Thompson, supra, 777 F.3d at 382; United States v. Albertson, 645 F.3d 191, 198 (3d Cir. 2011). It's true that in United States v. Johnson, 529 U.S. 53, 59, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000), a case in which the defendant, having been imprisoned for longer than he should have been (as determined when one of his convictions was vacated), asked that his term of supervised release be shortened in order to compensate for the extra time that he should not have been kept in prison, the Supreme Court rejected his request. It said " the objectives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of supervised release. Congress intended supervised release to assist individuals in their transition to community life. Supervised release fulfills rehabilitative ends, distinct from those served by incarceration." In other words, prison and supervised release are not interchangeable. United States v. Kappes, supra, [WL] at *31; Burkey v. Marberry, 556 F.3d 142, 149 (3d Cir. 2009). But there is overlap, because a number of the conditions are not purely rehabilitative but are also (or instead) intended, as prison and fines are, to deter future criminal conduct and protect the law-abiding community. The Court ...