United States v. Crisp

• Decision Date: 04 May 2016
• Docket Number: No. 15–2694.,15–2694.
• Citation: 820 F.3d 910
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. David L. CRISP, Jr., Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

820 F.3d 910

UNITED STATES of America, Plaintiff–Appellee

v.David L. CRISP, Jr., Defendant–Appellant.

No. 15–2694.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 8, 2016.

Decided May 4, 2016.

Katherine Virginia Boyle, Eugene L. Miller, Office of the United States Attorney Urbana, IL, for Plaintiff–Appellee.

Thomas W. Patton, Attorney Office of the Federal Public Defender Peoria, IL, for Defendant–Appellant.

Before POSNER, EASTERBROOK, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

In January 2014, appellant David L. Crisp, Jr. was convicted of possessing crack cocaine with intent to distribute. His initial sentence was reversed and remanded for resentencing based on issues with the conditions of supervised release. Crisp has appealed just one term of his new sentence: not the prison term but a condition of supervised release that directs him to participate in substance abuse treatment with the proviso: “You shall pay for these services, if financially able, as directed by the U.S. Probation Office.” Crisp argues that the district judge improperly delegated to the U.S. Probation Office the determination of his ability to pay for treatment. We affirm.

I. Factual and Procedural Background

Crisp was convicted in January 2014 of selling crack cocaine to a law enforcement informant. He has a long history of substance abuse and has been convicted 25 times of various crimes. This case is his eighth conviction involving a controlled substance. Crisp had been released from custody most recently in 2006 and had worked sporadically between that release and 2013. In July and August 2013, Crisp sold crack cocaine twice to a person cooperating with law enforcement. Then a search of his apartment turned up another 41 grams of crack.

Crisp pled guilty to possessing crack cocaine with intent to distribute. His original sentence was 240 months in prison followed by eight years of supervised release. Crisp appealed that sentence, arguing that three conditions of supervised release were not adequately supported by specific findings and were impermissibly vague or overbroad. He also argued that the district judge erred by failing to consider his cooperation with law enforcement. We decided his appeal as part of our opinion in United States v. Kappes, 782 F.3d 828 (7th Cir.2015). We held that the supervised release conditions Crisp challenged had not been adequately tailored and justified, id. at 852–53, so we reversed and remanded his case for a full resentencing.

Upon resentencing, the court reduced Crisp's sentence to 168 months in prison followed by the same eight years of supervised release. Among the conditions of supervised release, the court ordered Crisp, not surprisingly, to “participate in a program for substance abuse treatment.” The court also ordered him to “pay for these services, if financially able, as directed by the U.S. Probation Office.” The court had used the same language in the original sentence we reviewed in Kappes. Crisp objected that 18 U.S.C. § 3672 required the court to decide his ability to pay for treatment, without delegating the matter to the probation office. The district court approved the provision, saying that our court had “indicated that it is appropriate.”

II. Analysis

A. Waiver and Ripeness

We first address the government's argument that Crisp waived his objection to the ability-to-pay term because he failed to challenge the same provision during his first appeal in Kappes. Generally, “an issue that could have been raised on appeal but was not is waived and, therefore, not remanded.” United States v. Whitlow, 740 F.3d 433, 438 (7th Cir.2014). Under ordinary circumstances, Crisp's failure to raise the issue in his first appeal would result in waiver of the issue. See United States v. Husband, 312 F.3d 247, 250–51 (7th Cir.2002) (discussing limits on scope of remand); United States v. Parker, 101 F.3d 527, 528 (7th Cir.1996) (“A party cannot use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal because the remand did not affect it.”).

In Whitlow, however, we held that the government had waived the issue of the defendant's waiver in the district court by responding on the merits, without arguing waiver. 740 F.3d at 439. We have the same situation here. At the resentencing hearing, the government responded on the merits to Crisp's objection without arguing that he waived it. In so doing, the government waived the waiver argument.

We also face a ripe controversy here. Crisp is not challenging a specific ability-to-pay determination. None has been made. See United States v. Douglas, 806 F.3d 979, 984 (7th Cir.2015) (rejecting as unripe a challenge to supervised release condition because treatment on which challenge was based had not yet been ordered). Crisp challenges only the court's statutory authority to permit a probation officer to determine his ability to pay when he is released. That issue of statutory authority is ripe for decision now.

B. The Term in Dispute

Crisp contends that under 18 U.S.C. § 3672, only a district judge may decide his ability to pay for substance abuse treatment. If contested before the district court, challenges to conditions of supervised release are ordinarily reviewed for an abuse of discretion. United States v. Armour, 804 F.3d 859, 867 (7th Cir.2015), citing Kappes, 782 F.3d at 844. In this case, however, Crisp has raised only a legal question of statutory interpretation that we consider de novo, meaning without deference to the district court's judgment. United States v. Ford, 798 F.3d 655, 661 (7th Cir.2015).

Before diving into the statutory arguments, we focus first on the terms of the challenged condition: “You shall pay for these [substance abuse treatment] services, if financially able, as directed by the U.S. Probation Office.” On close scrutiny, that language turns out to be a little awkward. The key language, “as directed by the U.S. Probation Office,” seems to modify “pay for” rather than “if financially able.” Also, no language indicates clearly whether the judge intended the probation officer's direction about such payments to be final, so that the judge would have no further role, or to be subject to review by the judge as needed.

Based on the relationship between a district judge and the district's U.S. Probation Office, we think the better reading is that the judge was providing, first, that Crisp will be required to pay for the testing and treatment services if he is able to do so, and second, that the judge will rely on the probation officer to determine Crisp's ability to pay and to direct Crisp how much to pay and how often, but always subject to the court's ultimate review and supervision.

Probation officers are professionals who play critical roles in the federal criminal justice system. For offenders on supervised release, the probation officer is the principal contact and supervisor. The officer's roles can range from a counselor who encourages and advises an offender who is struggling with job and family issues after prison to a sterner role in enforcing restrictions on drugs and alcohol, contacts with other offenders, and financial obligations, all backed up by the ever-present power to seek revocation and a return to prison.

But of course probation officers do not have the power to revoke supervised release and return an offender to prison. Every action the probation officer takes is subject to review by the district court responsible for the supervisee. That includes an officer's directives to the supervisee to pay X dollars every month to cover the cost of substance abuse testing and treatment. We suggest that language along the following lines could make this intention clear: “The defendant shall pay the costs of substance abuse testing and treatment, to the extent he is financially able to pay. The U.S. Probation Office shall determine the defendant's ability to pay and any schedule for payment, subject to the court's review upon request.”

C. The Statutory Issue

The district judge may assign the probation officer the responsibility of gathering information about and evaluating and monitoring the defendant's financial status. As a practical matter, such assignments are inevitable. We are not persuaded that anything in the law prevents the judge from assigning the probation officer to make the initial determinations of how much must be paid as long as the judge is available to review any challenge to those determinations. On this issue our view is not inconsistent with two other circuits that have addressed this issue in precedential decisions.

Turning first to the statute, 18 U.S.C. § 3672 instructs the Director of the Administrative Office of the United States Courts to provide many forms of administrative support to U.S. Probation Offices. This support includes payments for administrative support and expert assistance. The key provision for this case is that the director may “contract with any appropriate public or private agency” to provide alcohol and substance abuse treatment for federal offenders, including those on supervised release.

Only one sentence in the ninth of nine paragraphs in § 3672 refers to the authority of sentencing courts: “Whenever the court finds that funds are available for payment by or on behalf of a person furnished such services, training, or guidance, the court may direct that such funds be paid to the Director.” In Crisp's view, the reference to “the court” implicitly prohibits a district judge from delegating to any extent the determination of ability to pay to the court's employee, the probation officer. He takes this view even though the delegation would be only for an initial decision, which would always remain subject to the court's review upon request.

Crisp seeks support from our decisions restricting the ability of district courts to delegate decisions on the schedules for drug tests and for payment of restitution and...