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Thursday, July 28, 2016

Ind. Decisions - 7th Circuit decided Indiana case yesterday, re sentencing conditions

In USA v. Carey Ray (ND Ind., Moody), a 15-page opinion, Judge Easterbrook writes:

[p. 10] We hold today that, whether or not it possesses jurisdiction to revise the conditions of supervised release while an appeal is pending, a district court should not exercise that jurisdiction without receiving permission under Circuit Rule 57—and it should not seek that permission in the absence of strong reasons that are lacking in Ray’s case. * * *

Sometimes it is sensible to fix problems in the super-vised-release portion of the sentence and let the rest stand. [cites omitted] Whether to proceed that way is a decision committed to this court, applying the principles developed in our precedents. That role should not be bypassed by a district judge’s unilateral decision. Circuit Rule 57 makes sure that the right body makes the decision. * * *

Instead of taking steps that delay appellate review, and perhaps prolong the imprisonment of someone who should be released quickly, a district court should wait for our decision of the appeal. Full reversal is one possible outcome. Then there would be no need for supervised release, and any dispute about the conditions of release would become moot. Reversal of some but not all counts is another possible out-come. Then the whole sentencing package, including the duration and conditions of supervised release, would need to be reviewed, and changes the district court made in the interim would be so much wasted motion. Still another possibility is affirmance across the board—that is, we might reject not only challenges to the conviction but also contentions that the conditions of supervised release are improper. That disposition would obviate a need for changes in the conditions. * * *

Because this opinion adopts a rule of practice for the cir-cuit, it was circulated before release to all active judges. See Circuit Rule 40(e). None favored a hearing en banc. * * *

In this case the district court jumped the gun and modified nine conditions while Ray’s original appeal was pending. The appropriate remedy is the same as in Thompson: a remand for full resentencing. The district court should circulate the text of all proposed conditions to the parties before the resentencing and allow each side an opportunity to make whatever objections and arguments the litigant deems appropriate. See United States v. Bloch, No. 15-1648 (7th Cir. June 17, 2016), slip op. 14–15. When resolving the parties’ contentions, the district judge will be able to consider the effect of appellate decisions that postdate the modification in September 2015.

Ray’s conviction is affirmed, but the sentence is vacated and the case is remanded for resentencing.

Posted by Marcia Oddi on July 28, 2016 09:17 AM
Posted to Ind. (7th Cir.) Decisions