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UNITED STATES of America, Plaintiff-Appellee, v. Elston A. HENRY, Defendant-Appellant

United States Court of Appeals for the Seventh Circuit2016-02-17No. No. 14-3810
813 F.3d 681

Summary

Holding. The court affirmed the two-level enhancement for managerial authority but vacated the judgment and remanded for full resentencing because the district judge failed to make required statutory findings for the supervised release term and conditions, and imposed overly broad conditions without adequate justification.

Henry pleaded guilty to drug conspiracy and firearm possession related to his drug trafficking operation. He recruited another person to sell heroin on his behalf, supplied the product with specific pricing instructions, retained eighty percent of sales revenue, and provided a firearm. The defendant challenged his 152-month prison sentence and the conditions of supervised release imposed by the district court.

The appellate court upheld the two-level sentencing enhancement based on Henry's managerial role over his recruit. The court found that recruiting someone, directing their work, setting their compensation, and equipping them with necessary tools establishes a supervisory relationship regardless of the absence of close day-to-day oversight. However, the court agreed with the government's concession that the district judge committed error in imposing the supervised release term and conditions without proper statutory findings and without adequately explaining or limiting certain restrictive conditions.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether recruiting and directing a drug seller with authority over compensation and operations constitutes a managerial role warranting sentencing enhancement
  • Whether adequate statutory findings were made to support the length and conditions of supervised release
  • Whether conditions permitting probation officer home visits without temporal or locational limitations were properly imposed without explanation

Procedural posture

The defendant appealed his 152-month prison sentence and supervised release conditions imposed after pleading guilty to drug conspiracy and firearm possession.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

POSNER, Circuit Judge.

The defendant pleaded guilty to conspiracy to possess an illegal drug intending to distribute it, see 21 U.S.C. §§ 846, 841, and to possession of a firearm for use in his drug trafficking, 18 U.S.C. § 924(c)(1)(A)®. He was sentenced to 152 months in prison. His only colorable challenges on appeal are to the length of the prison term and the duration and conditions of supervised release that the district judge imposed.

As part of his drug activity the defendant had recruited a man named Arsenio Purifoy to sell heroin for him. He supplied the heroin to Purifoy with instructions to charge $100 per gram and return $80 to him; the $20 retained by Purifoy was compensation for making the sale. (The record is silent on the cost to the defendant of the heroin he bought for Pur-ifoy to resell.) The judge increased the defendant’s guidelines range by two levels on the ground that he was Purifoy’s “manager, or supervisor,” of their joint drug activity. U.S.S.G. § 3Bl.l(c).

Application Note 4 to guideline 3B1.1 lists “exercise of decision making authority,” “recruitment of accomplices,” “the claimed right to a larger share of the fruits of the crime,” and “the degree of participation in planning or organizing the offense,” as being among the factors that a judge should consider in deciding whether to impose the two-level enhancement. All are present in this case. There defendant recruited Purifoy to be an accomplice, instructed him (according to Purifoy) in how to package heroin for sale, claimed — and indeed took — a much larger share (80 percent) of the revenue of Purifoy’s activity than Purifoy himself (20 percent), and in these respects exercised decision-making authority over Purifoy, determined Purifoy’s compensation, and was the planner and organizer of the drug activity (retail sale of heroin) that he had recruited Purifoy to conduct. He also helped pay for a gun for Purifoy to enable the latter to protect the conspirators. He even admitted having “recruited Purifoy to sell heroin for” him (that is, for the defendant). And finally Purifoy lived in the defendant’s home — -where the defendant could keep an eye on him and kick him out or worse if he didn’t toe the line.

If you recruit a person, tell him what his job is, specify his wage, and equip him with tools of his trade (the gun in this case), you’re his manager. Recruitment as a factor supporting an inference of management is emphasized in United States v. Mendoza, 576 F.3d 711, 717 (7th Cir.2009), a case similar to this one.

It’s true that there is no evidence of close, day by day supervision of Purifoy’s retail sales activity by the defendant. But an employee doesn’t cease to be an employee merely because he’s on a long leash. The judges of this court have been “recruited” by the federal government, which is in a broad sense the “organizer” of our activity, but there is no day to day supervision. The fact that Purifoy sold just heroin, though the enterprise sold other illegal drugs as well, is also irrelevant, for different employees often perform different tasks for their employer. The two-level enhancement was proper.

Regarding supervised release, however, the government concedes that the district judge erred and recommends that the judgment be vacated and the case remanded for full resentencing. The recommendation is consistent with the principle that because imprisonment and supervised release are to a degree substitutes — supervised release like prison imposes restrictions on the defendant’s freedom, albeit less stringent ones — a change either in the prison sentence or in the supervised-release sentence may warrant a change in the other sentence in order to produce an optimal mixture of tight and loose restrictions. E.g., United States v. Downs, 784 F.3d 1180, 1182 (7th Cir.2015).

The government is right to concede sentencing error in regard to supervised release. The district judge had failed to make the findings required by 18 U.S.C. §§ 3553(a) and 3583(d) to justify the length of a term of supervised release and the particular conditions (other than those required by statute) that he imposed. He also failed to state at sentencing the conditions that he was imposing. See 18 U.S.C. § 3583(c); United States v. Kappes, 782 F.3d 828, 845, 862 (7th Cir.2015); United States v. Thompson, 777 F.3d 368, 373 (7th Cir.2015).

And a number of the conditions that he imposed have been criticized by this court on a variety of grounds not addressed by the district judge. See, e.g., United States v. Poulin, 809 F.3d 924, 931-34 (7th Cir.2016); United States v. Kappes, supra, 782 F.3d at 848-51. For example, he did not explain why he was requiring the defendant, as one of the conditions of supervised release, to “permit a probation officer to visit him or her at any time at home or elsewhere and ... permit confiscation of any contraband observed in plain view of the probation officer.” The imposition of this condition without an explanation for its need in the particular case has drawn repeated criticism from this court. See, e.g., United States v. Kappes, supra, 782 F.3d at 850-51; United States v. Thompson, supra, 777 F.3d at 379-80; United States v. Poulin, supra, 809 F.3d at 934. There are two problems with the condition. The first is “or elsewhere.” There is no problem with the probation officer and the defendant agreeing to meet outside the defendant’s home, but it is unclear why the probation officer should be allowed to pick a location that may be inconvenient for the defendant. Replacing “elsewhere” with “at some other mutually convenient location designated by the probation officer” would solve this problem. Another solution is found in United States v. Armour, 804 F.3d 859, 864, 870 (7th Cir.2015)— ‘You shall permit a probation officer to visit you at home or any other reasonable location between the hours of 6:00 AM and 11:00 PM, unless investigating a violation or in case of emergency” (emphasis added). Omitting such a qualification (as the judge did in this case) leaves open at least the theoretical possibility that the probation officer could require the defendant to meet him in an inappropriate location, such as a funeral, or in a remote one, say a place many miles away.

The significance of a requirement of reasonableness is underscored by the remark in Armour that the defendant “argues that the term ‘or other reasonable location’ is vague and may subject Armour to searches at a church, hospital, or funeral home. However, under most circumstances, those visits would be unreasonable and thus barred by the condition itself. Therefore, imposing this condition was not an abuse of discretion.” 804 F.3d at 870 (emphasis added).

There is also a question of what the probation officer would hope to learn from home visits that he would not learn from the defendant’s required visits to the probation office. A defendant who has contraband in his home is unlikely to leave it in the “plain view” of the visiting probation officer. But in any event the home-visit condition is not mandatory, and being optional can be modified by the district judge to fit the particulars of the case.

Enough said. The judgment is vacated and the case remanded for a full resen-tencing.