USA v. Joshua Down

Filing

Filed opinion of the court by Judge Posner. REVERSED and REMANDED. Richard A. Posner, Circuit Judge; Joel M. Flaum, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6660361-1] [6660361] [14-3157]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3157
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSHUA DOWNS,
Defendant-Appellant.
____________________
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.

____________________
SUBMITTED APRIL 14, 2015 — DECIDED MAY 5, 2015
____________________
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

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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

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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, 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 supervised-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 tenyear 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

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v. Kappes, supra, 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 (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,
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 said that
“equitable considerations” could justify a court in reducing a
term of supervised release if the defendant’s incarceration
had been wrongly extended. United States v. Johnson, supra,
529 U.S. at 60. All it forbade was an automatic rule that the
term of supervised release must begin not on the date of the
defendant’s release from prison but on the date on which he
should have been released.
Prison and fine, prison and restitution, and also prison
and supervised release can as we’ve just noted be substitutes
as well as complements. So if in this case on remand the
judge narrows any of the conditions of supervised release or

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shortens their duration, he may wish to reexamine the prison sentence that he imposed as additional punishment for
the defendant’s violation of probation. As explained in United States v. Kappes, supra, at *31, “because the custodial and
supervised release portions of a sentence serve somewhat,
though not entirely, overlapping purposes, there might
properly be an interplay between prison time and the term
and conditions of supervised release. If certain supervised
release conditions are vacated, the balance struck by the sentencing judge might be disrupted to a degree where the
judge would wish to alter the prison term and/or other conditions to ensure that the purposes of deterrence, rehabilitation, and protecting the public are appropriately furthered
by the overall sentence” (citation and footnote omitted).
And finally we remind the judge of the need to reexamine the specific conditions imposed in light of our recent
decisions, perhaps to discard some, and certainly to reword
others.
REVERSED AND REMANDED.