820 F.3d 910
7th Cir.2016Background
- David L. Crisp, Jr. convicted (Jan 2014) of possessing crack cocaine with intent to distribute; long criminal history and substance-abuse background.
- Original sentence: 240 months + 8 years supervised release; this was reversed and remanded in United States v. Kappes for inadequately tailored supervised-release conditions.
- On resentencing the term of imprisonment was reduced to 168 months; supervised release again required participation in substance-abuse treatment.
- Supervised-release condition at issue: defendant "shall pay for these services, if financially able, as directed by the U.S. Probation Office."
- Crisp objected, arguing 18 U.S.C. § 3672 requires the court (not the probation officer) to determine ability to pay; district court approved the language and the government did not assert waiver of the new objection.
- The Seventh Circuit considered whether delegating initial ability-to-pay factfinding to a probation officer (subject to judicial review) is consistent with § 3672 and controlling delegation precedents.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court may delegate initial determination of defendant's ability to pay for court-ordered substance-abuse treatment to probation officer under 18 U.S.C. § 3672 | Crisp: § 3672 contemplates the court must find ability to pay; delegation to probation officer unlawfully shifts that judicial duty | Government: Probation officer can make initial factual determinations about ability to pay; court retains supervisory review; practical and statutory support for delegation | Court held delegation for initial factfinding is lawful so long as district court retains ultimate supervisory authority and review |
| Whether Crisp waived the objection by not raising it on first appeal | Crisp: N/A (raised challenge at resentencing) | Government: Issue waived because it could have been raised earlier | Court found government waived waiver defense by addressing the objection on the merits at resentencing; issue is ripe |
| Appropriate standard of review for statutory question | Crisp: N/A | Government: Ordinarily abuse of discretion for supervised-release conditions | Court: Statutory interpretation reviewed de novo |
| Whether § 3672 conflicts with precedents limiting delegation for financial schedules and drug-test scheduling | Crisp: Cases about fines/restitution and drug-test schedules show courts must set payment/test schedules, not probation officers | Government: Those statutes differ in specificity; § 3672 is administrative and directed to probation functions | Court distinguished fine/restitution cases and drug-test cases and aligned with circuits allowing delegation under § 3672 (with court oversight) |
Key Cases Cited
- United States v. Kappes, 782 F.3d 828 (7th Cir. 2015) (remand for inadequately tailored supervised-release conditions)
- United States v. Whitlow, 740 F.3d 433 (7th Cir. 2014) (government may waive procedural defenses by answering on merits)
- United States v. Warden, 291 F.3d 363 (5th Cir. 2002) (approving delegation of ability-to-pay determination to probation officer under § 3672)
- United States v. Dupas, 417 F.3d 1064 (9th Cir. 2005) (permitting probation officer to decide ability to pay for treatment; § 3672 focused on probation functions)
- United States v. Soltero, 510 F.3d 858 (9th Cir. 2007) (affirming delegation under § 3672; probation office limited to payments for court-approved treatment)
- United States v. Bonanno, 146 F.3d 502 (7th Cir. 1998) (district court must set ceiling for drug testing; limits on delegation)
- United States v. Yahne, 64 F.3d 1091 (7th Cir. 1995) (court must specify restitution/fine payment schedules)