United States v. David Crisp, Jr. , 820 F.3d 910 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-2694
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID L. CRISP, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 13-CR-20050 — James E. Shadid, Chief Judge.
____________________
ARGUED FEBRUARY 8, 2016 — DECIDED MAY 4, 2016
____________________
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 re-
manded 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 super-
vised release that directs him to participate in substance abuse
2 No. 15-2694
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 co-
caine 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 con-
trolled 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 re-
lease 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 chal-
lenged had not been adequately tailored and justified, id. at
852–53, so we reversed and remanded his case for a full resen-
tencing.
No. 15-2694 3
Upon resentencing, the court reduced Crisp’s sentence to
168 months in prison followed by the same eight years of su-
pervised 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 or-
dered him to “pay for these services, if financially able, as di-
rected 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 de-
cide 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 ap-
propriate.”
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). Un-
der 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 acci-
dent 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.”).
4 No. 15-2694
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 challen-
ging 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 treat-
ment. If contested before the district court, challenges to con-
ditions 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, how-
ever, Crisp has raised only a legal question of statutory inter-
pretation that we consider de novo, meaning without defer-
ence 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,
No. 15-2694 5
as directed by the U.S. Probation Office.” On close scrutiny,
that language turns out to be a little awkward. The key lan-
guage, “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 of-
ficer 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 super-
vised 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 offend-
ers, and financial obligations, all backed up by the ever-pre-
sent 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
6 No. 15-2694
month to cover the cost of substance abuse testing and treat-
ment. 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 re-
sponsibility of gathering information about and evaluating
and monitoring the defendant’s financial status. As a practical
matter, such assignments are inevitable. We are not per-
suaded that anything in the law prevents the judge from as-
signing the probation officer to make the initial determina-
tions of how much must be paid as long as the judge is avail-
able 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 provi-
sion 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
No. 15-2694 7
behalf of a person furnished such services, training, or guid-
ance, the court may direct that such funds be paid to the Di-
rector.” In Crisp’s view, the reference to “the court” implicitly
prohibits a district judge from delegating to any extent the de-
termination of ability to pay to the court’s employee, the pro-
bation officer. He takes this view even though the delegation
would be only for an initial decision, which would always re-
main subject to the court’s review upon request.
Crisp seeks support from our decisions restricting the abil-
ity of district courts to delegate decisions on the schedules for
drug tests and for payment of restitution and fines. See, e.g.,
United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998) (18
U.S.C. § 3583(d) prohibits delegation of decision about num-
ber of drug tests); United States v. Yahne, 64 F.3d 1091, 1097 (7th
Cir. 1995) (§ 3663(f)(1), which was later replaced by
§ 3664(f)(2), prohibits delegation of decision on schedule for
fine and restitution payments); United States v. Arellano, 137
F.3d 982, 986 (7th Cir. 1998) (Yahne holding extends to pay-
ment schedule for fines); United States v. Boula, 997 F.2d 263,
269 (7th Cir. 1993) (§ 3663(f)(1) requires district court to spec-
ify schedule for restitution payments); cf. United States v.
Tejeda, 476 F.3d 471, 473–75 (7th Cir. 2007) (erroneous delega-
tion of drug-test schedule was not plain error).
In cases involving payment for substance abuse treatment
and testing under § 3672, the Fifth and Ninth Circuits have
rejected this view and have permitted courts to assign the
ability-to-pay decision, though without being specific about
the importance of the judge’s power to review the probation
officer’s determination. In United States v. Warden, 291 F.3d 363(5th Cir. 2002), the Fifth Circuit approved the delegation of the
8 No. 15-2694
ability-to-pay determination to the probation officer. The de-
fendant in Warden had argued as Crisp does that the delega-
tion of this decision is comparable to an improper delegation
of setting a schedule of restitution payments. See id. at 366,
citing United States v. Albro, 32 F.3d 173 (5th Cir. 1994). The
Fifth Circuit rejected the comparison, explaining that the
“ability to pay” inquiry is a “factfinding determination com-
monly made by probation officers in other contexts.” Id.In United States v. Dupas, 417 F.3d 1064 (9th Cir. 2005), the
Ninth Circuit followed Warden and held that a district court
had not plainly erred by giving the probation officer authority
to determine ability to pay for drug treatment. The court ex-
plained that § 3672 is “directed primarily to the functions of
the probation office,” while § 3572 (schedules of fine pay-
ments) and § 3664 (schedules of restitution payments) are fo-
cused on “the court’s imposition of sentences and restitution.”
Id. at 1072. The Ninth Circuit contrasted the general language
in § 3672 about the court’s ability to order the defendant to
pay for the treatment with the much more specific language
in § 3572 and § 3664(f) about the court’s responsibility for set-
ting payment schedules for fines and restitution. Id. In so do-
ing, the Dupas court emphasized that the delegation did not
include the initial determination of whether substance abuse
treatment should be ordered in the first place, meaning that
no “core judicial function” had been delegated. Id.
In United States v. Soltero, 510 F.3d 858 (9th Cir. 2007), the
Ninth Circuit went beyond the plain-error question in Dupas
and approved a delegation of ability to pay decision under
§ 3672 using an abuse of discretion standard. Soltero quoted
the reasoning of Dupas and affirmed the delegation with little
additional analysis. Id. at 864. The court noted, however, that
No. 15-2694 9
the probation office had the power only to require payment
for treatment the court had already approved, not the power
to impose punishment. Id. at 864 n.6. 1
We agree with the Fifth and Ninth Circuits that the com-
parisons to schedules for fine payments and restitution pay-
ments are not persuasive here. The statutes governing fine
and restitution schedules are much more detailed and explicit
about the district court’s responsibilities. See 18 U.S.C. § 3572(d)(2) and (3) (requiring court, if immediate payment of fine
is not required, to set schedule for “shortest time in which full
payment can reasonably be made” and to require defendant
to notify court of material change in economic circumstances);
§ 3664(f)(2) (requiring court to “specify in the restitution order
the manner in which, and the schedule according to which,
the restitution is to be paid….”)(emphasis added). As noted,
§ 3672 has only one general sentence addressing the ability-
to-pay question and provides no details about how courts are
to determine if “funds are available” or the method and pro-
cedure by which “such funds” should be paid to the proba-
tion office.
We also see a relevant difference in kind between fines and
restitution, which are part of the defendant’s punishment in
1 The Soltero panel majority made this point in response to the dis-
sent’s assertion that “deciding whether a defendant should be forced to
pay for rehabilitative treatment (and, if so, to what extent)” was a punitive,
not an administrative, decision. Id. at 869 (Hawkins, J., dissenting in part).
In this case, the district court decided that payment will be required. The
only issue assigned to the parole officer, and only in the first instance, is
the defendant’s financial ability to pay. That decision is purely adminis-
trative.
10 No. 15-2694
the original sentence, and payment for substance abuse treat-
ment during supervised release, which is intended only for
the defendant’s rehabilitation. See Dupas, 417 F.3d at 1071–72
(collecting cases). Unlike decisions regarding payment of
fines and restitution, which are so central to the defendant’s
culpability and punishment, the question of ability to pay is
essentially administrative. The probation officer is in the best
position to evaluate the defendant’s financial status in the first
instance. If a defendant under supervision believes the proba-
tion officer is acting unreasonably, he may ask the court to
step in and overrule the probation officer. As noted, the su-
pervisor for supervised release is ultimately the court.
To oppose this reasoning, Crisp relies on our decisions on
schedules for drug tests and restitution payments. Those de-
cisions have relied on language in § 3583(d) and § 3663(f)(1)
that identifies “the court” as the one to make the decision,
much as § 3672 says the court should find whether funds are
available to pay for substance abuse treatment. The argument
has some force, but we are not persuaded.
Bonanno and the other drug test cases require the district
court to set the number of drug tests but then allow a proba-
tion officer to exercise discretion under that ceiling. District
courts have responded to that line of cases by setting high ceil-
ings (such as “no more than 104 tests per year”) and allowing
probation officers to order drug tests as needed in the officer’s
judgment. See Gutierrez-Ceja, 711 F.3d at 782–83. We see no
significant difference between that sort of permissible delega-
tion and the payment provision here. In this case the judge
has in effect ordered the defendant to pay all the costs of the
substance abuse treatment—unless the probation officer con-
No. 15-2694 11
cludes he cannot do so as a practical and administrative mat-
ter. In both instances, the judge determines that the payment
or testing requirement is appropriate, while actual implemen-
tation is left to the probation officer, who is closer to the de-
fendant’s circumstances. Section 3672 permits that approach.
Crisp is clearly worried that probation officers will abuse
their discretion, but probation officers must have some degree
of discretion if they are to perform their duties. As we said in
Kappes, “at some point, we must ‘fairly presume [the defend-
ant]’s probation officer will apply the conditions in a reason-
able manner.’” 782 F.3d at 857, quoting United States v. Smith,
606 F.3d 1270, 1283 (10th Cir. 2010) (alteration in original).
If probation officers abuse their authority, district judges
can step in. A probation officer’s actions are always subject to
judicial review. If Crisp feels his probation officer is unreason-
ably requiring payment of the costs of drug treatment, he may
seek modification of the condition under 18 U.S.C.
§ 3583(e)(2). See United States v. Neal, 810 F.3d 512, 518 (7th Cir.
2016). This backstop allows the district judge to assign this
factual determination to the probation officer in a pragmatic
way, and to do so without relinquishing ultimate control over
the sentence and supervision, including the payment terms.
Accordingly, the ability-to-pay term of the supervised re-
lease conditions is lawful, and Crisp’s sentence is AFFIRMED.