UNITED STATES of America, Plaintiff-Appellee, v. David L. CRISP, Jr., Defendant-Appellant.
No. 15-2694.
United States Court of Appeals, Seventh Circuit.
May 4, 2016.
Argued Feb. 8, 2016.
820 F.3d 910
Katherine Virginia Boyle, Eugene L. Miller, Office of the United States Attorney Urbana, IL, for Plaintiff-Appellee. Thomas W. Patton, Attorney Office of the Federal Public Defender Peoria, IL, for Defendant-Appellant.
Before POSNER, EASTERBROOK, and HAMILTON, Circuit Judges.
SBI‘s remaining arguments can be dispatched summarily. One is that SBI hadn‘t agreed with Knauf that all the debts listed in a February 1, 2012, account statement (“an agreement between the parties that all items of an account and balance are correct, together with a promise, express or implied, to pay the balance,” Jackson v. Trancik, 953 N.E.2d 1087, 1091 (Ind.App.2011)) were correct, or that SBI was actually required to pay them. Knauf had been sending SBI invoices and monthly statements for years, and far from there being any evidence that SBI ever protested we have Mr. Dowd‘s acknowledgment that “Knauf chose to sue rather than continue the negotiation efforts, where ... I would have disputed the amount.” Apart from a single charge of $4,372.41 in January 2012, all of the charges on the final account statement were months or even years old. The defendants did not object to the charges until after this lawsuit was filed. “[F]ailing to object to liability on an account until a suit is filed constitutes failure to object to the account within a reasonable time and supports the inference of an agreement that the account balance is correct.” Auffenberg v. Board of Trustees of Columbus Regional Hospital, 646 N.E.2d 328, 331 (Ind.App.1995).
The defendants’ final argument is that Knauf has failed to explain whether it credited some $1.3 million that SBI paid it between October 2008 and January 2012 against SBI‘s debts to it. But SBI would surely have noticed had the account statements that it admits having received from Knauf during this period failed to reflect a $1.3 million credit; nor did SBI plead the $1.3 million or any part of it as a setoff to Knauf‘s claim or present any evidence that it had paid that amount, beyond a declaration by Mr. Dowd that it “may be that Knauf has not credited these $1.3 million in payments,” (emphasis added), which is pure speculation.
And so the judgment of the district court is
AFFIRMED.
In January 2014, appellant David L. Crisp, Jr. was convicted of possessing crack cocaine with intent to distribute. His initial sentence was reversed and remanded 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 supervised release that directs him to participate in substance abuse 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 cocaine 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 controlled 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 release 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 challenged had not been adequately tailored and justified, id. at 852-53, so we reversed and remanded his case for a full resentencing.
Upon resentencing, the court reduced Crisp‘s sentence to 168 months in prison followed by the same eight years of supervised 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 ordered him to “pay for these services, if financially able, as directed by the U.S. Probation Office.” The court had used the same language in the original sentence we reviewed in Kappes. Crisp objected that
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). Under 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 accident of a remand to raise in a
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 challenging 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
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, as directed by the U.S. Probation Office.” On close scrutiny, that language turns out to be a little awkward. The key language, “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 officer 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 supervised 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 offenders, and financial obligations, all backed up by the ever-present 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 in-
C. The Statutory Issue
The district judge may assign the probation officer the responsibility of gathering information about and evaluating and monitoring the defendant‘s financial status. As a practical matter, such assignments are inevitable. We are not persuaded that anything in the law prevents the judge from assigning the probation officer to make the initial determinations of how much must be paid as long as the judge is available 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,
Only one sentence in the ninth of nine paragraphs in
Crisp seeks support from our decisions restricting the ability 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) (
In cases involving payment for substance abuse treatment and testing under
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 explained that
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
We agree with the Fifth and Ninth Circuits that the comparisons to schedules for fine payments and restitution payments are not persuasive here. The statutes governing fine and restitution schedules are much more detailed and explicit about the district court‘s responsibilities. See
We also see a relevant difference in kind between fines and restitution, which are part of the defendant‘s punishment in the original sentence, and payment for substance abuse treatment during supervised release, which is intended only for the
To oppose this reasoning, Crisp relies on our decisions on schedules for drug tests and restitution payments. Those decisions have relied on language in
Bonanno and the other drug test cases require the district court to set the number of drug tests but then allow a probation officer to exercise discretion under that ceiling. District courts have responded to that line of cases by setting high ceilings (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 United States v. Gutierrez-Ceja, 711 F.3d 780, 782-83 (7th Cir.2013). We see no significant difference between that sort of permissible delegation 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 concludes he cannot do so as a practical and administrative matter. In both instances, the judge determines that the payment or testing requirement is appropriate, while actual implementation is left to the probation officer, who is closer to the defendant‘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 defendant]‘s probation officer will apply the conditions in a reasonable 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 unreasonably requiring payment of the costs of drug treatment, he may seek modification of the condition under
Accordingly, the ability-to-pay term of the supervised release conditions is lawful, and Crisp‘s sentence is AFFIRMED.