United States v. Kappes

• Citation: 782 F.3d 828
• Decision Date: 08 April 2015
• Docket Number: 14–2135,Nos. 14–1223,14–2482.,s. 14–1223
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Parrish KAPPES, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. David L. Crisp, Jr., Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Jeffrey J. Jurgens, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

782 F.3d 828

UNITED STATES of America, Plaintiff–Appellee

v.Parrish KAPPES, Defendant–Appellant.

United States of America, Plaintiff–Appellee

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

United States of America, Plaintiff–Appellee

v.Jeffrey J. Jurgens, Defendant–Appellant.

Nos. 14–1223

14–2135

14–2482.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 14, 2014.

Decided April 8, 2015.

Elham M. Peirson, Ronda H. Coleman, Attorneys, Office of the U.S. Attorney, Urbana, IL, Greggory R. Walters, Attorney, Office of the United States Attorney, Peoria, IL, Kirk Schuler, Attorney, Office of the United States Attorney, Rock Island, IL, for Plaintiff–Appellee.

Daniel J. Hillis, Attorney, Office of the Federal Public Defender, Springfield, IL, Thomas W. Patton, Attorney, Office of the Federal Public Defender, Peoria, IL, Michelle L. Jacobs, Attorney, Biskupic & Jacobs, S.C., Mequon, WI, for Defendants–Appellants.

Before BAUER, FLAUM, and TINDER, Circuit Judges.

Opinion

TINDER, Circuit Judge.

We resolve three appeals in a single opinion because the appeals raise similar challenges to conditions of supervised release. Although supervised release has been a feature of the federal criminal justice system for nearly thirty years, with over a million federal defendants having been sentenced to supervised-release terms, during the past several years we have addressed certain aspects of supervised release for the first time.¹ Some defendants, judges, lawyers, and probation officers might characterize our recent focus on these issues as better late than never, while others might grumble that we are trying to fix an unbroken system. In any event, we hope our recent jurisprudence results in the imposition of supervised-release conditions that are properly- noticed, supported by adequate findings, and well-tailored to serve the purposes of deterrence, rehabilitation, and protection of the public.

The first section of this opinion provides an overview of the system of supervised release, including four general sentencing principles judges should consider. Next, we outline the history, crimes, and sentencings of the three defendants at issue. Then, we address the specific supervised-release challenges raised by each defendant, organized by the four general sentencing principles. Lastly, we consider Defendant Crisp's contention that the sentencing judge failed to consider one of his principal mitigation arguments.

I. Supervised Release

In 1984, Congress passed the Sentencing Reform Act, which replaced the federal parole system with the system of supervised release. See 18 U.S.C. § 3583 ; see generally S.Rep. No. 98–225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182. The parole system allowed a convicted defendant to be released prior to the expiration of his prison term on conditions designed to reduce the likelihood of his committing further crimes. Parole was criticized for creating uncertainty as to how long a particular defendant would actually spend in prison—i.e., the judicially-imposed sentence was not considered the “real sentence” because it was “subject to constant adjustment by the parole commission”—which was viewed as undermining public respect for the law and defendants' morale. S.Rep. No. 98–225, at 56.

Under the replacement system of supervised release, judges impose conditions at sentencing which take effect after the completion of the defendant's prison term, and, in contrast to parole, do not reduce the length of the custodial portion of a defendant's sentence.² The purposes of supervised release have been variously described as rehabilitation, deterrence, training and treatment, protection of the public, and reduction of recidivism. See United States v. Johnson, 529 U.S. 53, 59–60, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000) ; United States v. Siegel, 753 F.3d 705, 708 (7th Cir.2014) ; United States v. Evans, 727 F.3d 730, 733 (7th Cir.2013). Supervised release was not intended to be imposed for the purposes of punishment or incapacitation, “since those purposes will have been served to the extent necessary by the term of imprisonment.”S.Rep. No. 98–225, at 125 ; see also Johnson, 529 U.S. at 59, 120 S.Ct. 1114 (“Supervised release fulfills rehabilitative ends, distinct from those served by incarceration.”); cf. 18 U.S.C. § 3583(c) (directing a court contemplating the imposition of supervised release to consider most sentencing factors set forth in 18 U.S.C. § 3553(a), except the need for the sentence to provide just punishment for the offense). The Supreme Court has described supervised release as “the decompression stage” between prison and full release. Johnson v. United States, 529 U.S. 694, 709, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000). “Prisoners may, of course, vary in the degree of help needed for successful reintegration. Supervised release departed from the parole system it replaced by giving district courts the freedom to provide postrelease supervision for those, and only those, who needed it. Congress aimed, then, to use the district courts' discretionary judgment to allocate supervision to those releasees who needed it most.” Id. (citation omitted).

In some felony cases, including certain cases involving drug-trafficking, sex offenses and domestic violence, supervised release is mandated by statute. See, e.g., 18 U.S.C. § 3583(a), (k) ; 21 U.S.C. §§ 841(b), 960(b). Between 2005 and 2009, approximately 41 percent of sentenced federal defendants were subject to statutes mandating supervised release. See U.S. Sentencing Comm'n, Federal Offenders Sentenced to Supervised Release at 69 n. 275 (2010), available at http://www.ussc. gov/sites/default/files/pdf/research-and-publications/research-publications/2010/20100722SupervisedRelease.pdf (last visited Mar. 26, 2015, as were all websites in this opinion). Although the sentencing guidelines call for supervised release in all remaining cases with a prison sentence of more than one year (with limited exceptions), see U.S.S.G. § 5D1.1(a)(2), the Supreme Court made the relevant provisions of the guidelines discretionary in 2005. See United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ; United States v. Parker, 508 F.3d 434, 442 (7th Cir.2007). The change from supervised release being mandatory to discretionary has made little practical difference: between 2005 and 2009, district courts imposed a term of supervised release in 99.1 percent of cases with a prison sentence in excess of one year but not subject to statutorily-mandated supervised release. U.S. Sentencing Comm'n, Federal Offenders Sentenced to Supervised Release at 7, 52 n. 241. So while supervised release may have been intended “for those, and only those, who needed it,” Johnson, 529 U.S. at 709, 120 S.Ct. 1795, the reality is that virtually all federal defendants who spend at least a year in custody are subject to supervised release.

The sentencing procedure generally is as follows. First the probation officer conducts a presentence investigation which culminates in the preparation of a presentence report. See 18 U.S.C. § 3552(a), (b) ; Fed.R.Crim.P. 32(c), (d). The presentence report identifies the kinds of sentences available, including the terms of supervised release which may be appropriate. See Fed.R.Crim.P. 32(d)(1)(C). The presentence report is disclosed to the parties at least 35 days before sentencing, and the parties state in writing any objections 14 days later. See Fed.R.Crim.P. 32(e)(2), (f)(1). At least seven days before sentencing, the presentence report, including any addenda addressing objections, is submitted to the court and the parties.See Fed.R.Crim.P. 32(g).

At the sentencing hearing, the sentencing judge hears from the lawyers, the defendant and any victims who are present, and may receive evidence related to objections. See Fed.R.Crim.P. 32(i). Ultimately, the judge engages in a two-part analysis. First, the judge determines the defendant's sentencing range under the guidelines. United States v. Adkins, 743 F.3d 176, 189 (7th Cir.), cert. denied, ––– U.S. ––––, 134 S.Ct. 2864, 189 L.Ed.2d 823 (2014). Second, the judge makes “an individualized assessment of the appropriate sentence based on the § 3553(a) factors.” Id. (quotation omitted). Any term of supervised release is considered part of the overall sentence. Id. at 192. In determining whether to include a term of supervised release, and, if so, in determining the length of the term and the conditions of supervised release, the judge is required to consider the factors set out in 18 U.S.C. §§ 3553(a) and 3583(c) -(d), which are discussed below.

The sentencing judge's difficult task is not undertaken on a completely blank slate, but rather is structured by statutes and the guidelines, which recommend a range of terms of supervised release depending upon the category of offense, see 18 U.S.C. § 3583(b), and list certain mandatory and discretionary conditions, see id. §§ 3563(a)-(b), 3583(d); U.S.S.G. § 5D1.3. Some of the discretionary conditions are called “standard,” U.S.S.G. § 5D1.3(c), while others are called “special,” id. § 5D1.3(d) -(e), and are recommended for particular offenses. Sentencing judges also are empowered to “impose conditions of their own devising.” Siegel, 753 F.3d at 707.

After the sentencing judge exercises his or her “wide discretion in determining conditions of supervised release” at sentencing, Adkins, 743 F.3d at 193 (quotation omitted), the judge typically has no further occasion to consider the defendant's supervised release until after the defendant has completed the custodial portion of his sentence, begun serving supervised release under supervision by a federal probation officer, and the district court is presented with a motion for modification, revocation, or termination of supervised release. See 18 U.S.C. § 3583(e). Although not currently mandated by statute or the guidelines, we have suggested that sentencing judges “[r]equire that on the eve of his release from prison, the...