United States v. Connie Downey , 908 F.3d 205 ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 17-3286
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CONNIE DOWNEY,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:17-cr-00193-1 — John Robert Blakey, Judge.
ARGUED SEPTEMBER 7, 2018 — DECIDED NOVEMBER 2, 2018
Before WOOD, Chief Judge, and ROVNER and BRENNAN,
Circuit Judges.
ROVNER, Circuit Judge. On or about March 21, 2017, Connie
Downey attempted to rob the Associated Bank in Waukegan,
Illinois, by approaching a bank teller, pointing a cap gun at her,
and demanding money. When the teller and a co-employee
both ducked behind the counter, he left the bank. The follow-
2 No. 17-3286
ing day, he entered TCF Bank in Waukegan holding a cap gun
at his side, but after observing the number of people in the
bank and that a partition separated the customer area from the
bank teller counter, he left the bank. TCF Bank contacted the
police after he left and he was arrested a short distance away
from that bank following a brief foot chase.
He subsequently pled guilty to attempted bank robbery, in
violation of 18 U.S.C. § 2113(a) and entry of a bank with intent
to commit larceny, also in violation of 18 U.S.C. § 2113(a). The
district court sentenced him to 57 months’ imprisonment and
3 years of supervised release. The court imposed a number of
conditions on his supervised release, some of which he now
challenges in this appeal.
As an initial matter, the government argues that Downey
has waived the challenges, or that at a minimum the argument
must be reviewed only for plain error, because no objection
was made in the district court and defense counsel responded
in the negative when the court asked if anyone had an objec-
tion to the terms or conditions of supervised release or justifi-
cations set forth by the probation officer in the Presentence
Investigation Report. It matters not to this case, however,
whether the challenges are waived or forfeited and therefore
reviewed for plain error, because the challenges cannot meet
the plain error standard and in fact are without merit under
any standard.
First, Downey challenges the imposition of mandatory and
discretionary conditions relating to drug testing. Mandatory
condition #6 provides:
you shall refrain from any unlawful use of a con-
No. 17-3286 3
trolled substance AND submit to one drug test
within 15 days of release on supervised release and
at least two periodic tests thereafter, up to 104
periodic tests for use of a controlled substance
during each year of supervised release.
Dist. Ct. Judgment at 3.
Discretionary condition #9 imposes a similar limitation on
drug testing, providing:
you shall participate, at the direction of a probation
officer, in a substance abuse treatment program,
which may include urine testing up to a maximum
of 104 tests per year.
Id.Downey does not dispute that regular drug testing is
appropriate. Nor does he complain that as many as 104 tests
would be unreasonable. In his arguments in mitigation at
sentencing, he maintained that his current and past crimes
were a product of his 40 years of drug addiction and that he
needed drug treatment. He even requested that his sentence
include the provision of such drug treatment. In this appeal,
however, he argues that the two conditions would subject him
to as many as 208 drug tests per year, and that such an amount
is unreasonable.
The provisions, however, read together cannot support
such an interpretation. The mandatory condition is a global
limitation on the number of drug tests, setting a maximum
number of drug tests “during each year of supervised release.”
The discretionary provision addresses a subset of all drug tests,
4 No. 17-3286
allowing urine tests as many as 104 times per year as part of a
substance abuse treatment program. Thus, the discretionary
condition allows such programs to include such drug tests up
to the maximum allowable yearly tests to which a person on
supervised release can be subjected. Nothing in that provision
purports to expand the total number of drug tests per year
from the 104 maximum set forth in the mandatory condition.
Both provisions reflect the principle that the maximum number
of drug tests per year is 104, and if there is any doubt we now
hold that the discretionary condition does not authorize any
drug tests that would exceed the maximum number of 104
tests provided in the mandatory condition. Downey does not
dispute the reasonableness of 104 tests, and therefore that
interpretation of the language of the conditions resolves his
challenge to them.
The remaining challenge he pursues is to the discretionary
condition that allowed the probation officer to visit Downey at
any location specified by the probation officer. Downey argues
that the provision is at odds with our decision in United States
v. Henry, 813 F.3d 681, 683 (7th Cir. 2016), in which we ex-
pressed concern that a probation officer would be allowed to
“pick a location that may be inconvenient for the defendant.”
For this argument, however, Downey ignores the limiting
language in this condition. His challenge is to discretionary
condition #16, which provides:
you shall permit a probation officer to visit you at
any reasonable time at home [or] other reasonable
location specified by a probation officer; [and] you
shall permit confiscation of any contraband ob-
served in plain view of the probation officer.
No. 17-3286 5
Dist. Ct. Judgment at 4.
Unlike the language in Henry, which allowed a probation
officer “to visit him or her at any time at home or elsewhere,”
the condition in this case limits such visits to “any reasonable
time” at home or “other reasonable location … .” Henry,
813 F.3d at 683. In Henry, we explicitly noted that the concern
with the probation officer choosing an inconvenient, inappro-
priate or remote location could be alleviated by including a
requirement of reasonableness, and cited to our decision in
United States v. Armour, 804 F.3d 859, 864, 870 (7th Cir.2015)
which approved a condition permitting a probation officer
to visit at home or any other reasonable location … .” (emphasis
in Henry). 813 F.3d at 683–84. The court here comports with
that guidance from Henry, and the limit to a “reasonable”
location resolves the concern that the condition would allow
the probation officer to choose an inappropriate location.
Downey argues, however, that the court should have
required “a mutually convenient location designated by the
probation officer.” In Henry, we suggested such language as a
means to resolve the concern that a probation officer could
choose an inconvenient location. Id. But we did not mandate
such language, nor did we hold that adding such language was
the only means of addressing the concern with vesting unbri-
dled discretion in the probation officer over the location of
meetings. In fact, in Henry we explicitly recognized that the
same concern could also be resolved by language requiring
that the location be “reasonable.” Id. at 684. That is what the
court did in this case, including the requirement that the
location be “reasonable” as we approved in Henry and Armour.
6 No. 17-3286
Because that language adequately resolves the concern with
the probation officer’s discretion, the challenge to the discre-
tionary condition is without merit.
Accordingly, the decision of the district court is
AFFIRMED.