# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Argued December 15, 2015

Decided January 29, 2016

Before

WILLIAM J. BAUER, Circuit Judge

RICHARD A. POSNER, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 14-3757

UNITED STATES OF AMERICA, Plaintiff-Appellee

,

v

.

PATRICK ARMAND, Defendant-Appellant

. Appeal from the United States District
Court for the Northern District of Illinois,

Eastern Division.

No. 12 CR 400

J ames B. Zagel, Judge

.

O R D E R

Patrick Armand pleaded guilty to distributing a controlled substance, 21 U.S.C. § 841(a)(1), and was sentenced to 108 months ’ imprisonment, 3 months above the high end of the guidelines range. He appeals his se ntence, contending that the district court misstated the imprisonment range, ignored two of his arguments in mitigation, failed to justify the length of his terms of imprisonme nt and supervised release or the conditions of supervised release, and imposed conditio ns of supervised release that have been invalidated by this court. We agree with Ar mand that he must be resentenced because, as the government concedes, the district court imposed unconstitutionally vague conditions of supervised rele ase and did not justify those di scretionary conditions or the length of supervision. NONPRECEDENTIAL DISPOSITION

To be cited onl y in accordance with Fed. R. A pp . P. 32.1No. 14-3757 Page 2

Armand, who is now 40 years old, came to the attention of th e DEA in March 2011 when an informant reported that he an d others were obtaining drugs in Atlanta, Georgia, and selling them in Chicago. At th e direction of DEA agents, the informant bought 117 grams of crack cocaine from Ar mand in May 2011 and 122 grams of powder cocaine plus 100 pills in February 2012.

Armand was charged with two counts of di stribution in violation of § 841(a)(1). While on pretrial release Armand remained employed and provided some financial support to his family, but he also violated th e conditions of his release by committing a domestic battery and not telling his pretrial services officer about his arrest for that

offense. Armand also violated the conditions of his release by skippi ng one drug test and testing positive for drug use on other occasi ons, failing to participate in drug treatment as directed, and not complying with loca tion-monitoring requir ements. He pleaded guilty to the count involving his February 2 012 distribution of powder cocaine and pills, though as part of his plea agreement he stipul ated to the crack distribution alleged in the other, dismissed count. Armand already had a conviction for a felony drug offense, so by agreeing to plead guilty to the count in volving powder cocaine he avoided statutory minimums of 10 years’ imprisonment and 8 ye ars’ supervised release that would have applied to the count involving crack, see 21 U.S.C. §§ 841(b)(1)(B)(iii), 851.

A probation officer initially calculated a guidelines imprisonment range of 100 to 125 months using the 2013 guidelines, base d on a total offense level of 25 and criminal-history category of V. The part ies later agreed that Amendment 782 should apply, see U.S.S.G. § 2D1.1, amend. 782, which decreased the total offense level to 23 and the imprisonment range to 84 to 105 months.

Armand agreed with the probation office r’s application of the guidelines but requested a prison sentence significantly below the guidelines range. He principally argued that the difference in offense levels for like quantities of powder and crack cocaine is unjust, and he asked the court to im pose a sentence as if both of his cocaine sales to the informant had involved powd er. If Armand had delivered 117 grams of powder instead of crack in the first sale, hi s guidelines imprisonment range would have been 37 to 46 months. Armand further argue d that a below-range prison term was warranted because of several factors specific to him, including his purported efforts to cooperate with authorities, childhood trauma s, the nonviolent character of these drug
crimes, his need for mental-health treatment, and the 20 years that had passed since his

last arrest for drug distribution (counsel downplayed that du ring those years Armand hadNo. 14-3757 Page 3

incurred 11 convictions for crimes unrelated to drugs , including one conviction for an

armed home invasion and two others for crimes involving domestic violence).

The district court accepted the probatio n officer’s revised calculation of an imprisonment range of 84 to 105 months. The judge, although acknowledging his discretion to accept Armand’s argument ab out the difference in offense levels for powder and crack, declined to engage the cont ention, explaining that “the reason I don’t have to address it is . . . there is a Cong ressional guideline.” The court then concluded that Armand’s “repetitive pattern of violatin g the law” and numerous violations of his conditions of pretrial release, which the co urt said demonstrated a “dangerous disregard for following specific rules” even if “non e of the things in and of themselves are particularly serious,” justified a prison se ntence of 108 months. The court mistakenly characterized that term as being within the guidelines range (perhaps thinking of the probation officer’s initial calculation of a range of 100 to 125 months). The court added, though, that the sentence would be the same even with a substantially lower guidelines range because the choice of 108 months reflects the need to protect society from Armand as well as the “the nature of his conduct, his erratic nature, and . . . his age.”

The court then imposed a 5-year term of supervised release, subject to “the standard conditions” and 6 special conditions:

The defendant shall participate in a drug aftercare treatment program which may include urine testing, up to 104 tests per year at the discretion of the probation officer.

The defendant shall participate in a mental health treatment program which may include the use of prescripti on medications at the discretion of the probation officer.

The defendant shall participate in a pr ogram aimed at addressing domestic violence and anger issues.

The defendant shall repay to the Un ited States “Buy Money,” in the amount of $8,780, which he received du ring the investigation of this offense. Payments should be made to the Drug Enforcement

Administration.No. 14-3757 Page 4

If the defendant is unemployed after th e first 60 days of supervision, or if unemployed for 60 days after termination or lay-off from employment, he shall perform at least 20 hours of community service work per week at the direction of . . . the U.S. Probation Office until gainfully employed.

The defendant shall not incur new credit charges or open additional lines of credit without the approval of th e probation officer unless the defendant is in compliance with the in stallment payment schedule.

On appeal Armand first argues, and the government concedes, that he must be resentenced to resolve issues with the length and conditions of his supervised release. Although Armand did not object to the length or conditions of supervised release at sentencing, the probation officer had not propos ed specific conditions in the presentence report, and thus we review the cond itions for abuse of discretion. See United States

v. Poulin , ___ F.3d ___, ___ (7th Cir. 2016); United States v. Douglas , 806 F.3d 979, 983 (7th Cir. 2015). And the district court abused its discretion by imposing the conditions without explaining its reasons or applying th e sentencing factors required by 18 U.S.C. § 3553(a) and § 3583(d). The court also impo sed a 5-year term, rather than the 3-year minimum under 21 U.S.C. § 841( b)(1)(C), without explanatio n. A few of the standard conditions might have withstood scrutiny if explained adequately, see United States v. Kappes , 782 F.3d 828, 848–53 (7th Cir. 2015), but most of them are impermissibly vague or overbroad as noted in several recent opinions, e.g. , United States v. Purham , 795 F.3d 761, 765–68 (7th Cir. 2015); United States v. Sandidge , 784 F.3d 1055, 1067–70 (7th Cir. 2015); United States v. Thompson , 777 F.3d 368, 376–81 (7th Cir. 2015). These errors justify a full resentencing in which the judge may choose to revise the terms of imprisonment and supervised release “given the interplay between the two types of sentencing.” United States v. Sanford , 806 F.3d 954, 960 (7th Cir. 2015). And although Armand’s challenge to the special conditions focuses on the absence of justification for them, we note that the first two (giving the probation officer discretion to decide the number of drug tests and whether or not Armand must ta ke “prescription medications” as part of mental-health treatment) raise questions of im proper delegation of the district court’s authority. See United States v. Harvey , 484 F.3d 453, 458–59 (7th Cir. 2007) (concluding that 18 U.S.C. § 3583(d) requires that sentencing court, not the probation officer, specify number of drug tests); United States v. Pruden , 398 F.3d 241, 250–51 (3rd Cir. 2005) (special condition allowing probation o fficer to direct mental-health treatment constituted “impermissible delegation of judicial authority”).No. 14-3757 Page 5

In addition to challenging the length and conditions of supervised release, Armand also contests his 108-month prison se ntence. That term should be vacated, he says, because the district court mistakenly thought that 108 months was within the guidelines range, did not try to justify the above-range sentence, and did not address his arguments in mitigation about the crack-to -powder ratio and his efforts to cooperate with the government.

Given that we agree with the parties that a full resentencing is warranted, there is no reason to discuss at length matters, in cluding the district court’s slip about the imprisonment range, that won’t arise on remand. We note, though, that the court acknowledged, yet explicitly declined to exer cise, its discretion to reject the Sentencing Commission’s treatment of crack relative to powder cocaine. See Kimbrough v. United

States , 552 U.S. 85, 110 (2007); United States v. Scott , 555 F.3d 605, 610 (7th Cir. 2009);

United States v. House , 551 F.3d 694, 701 (7th Cir. 2008). And Armand’s contention that the court was compelled to expound upon his “coop eration” is frivolous. Not only did his lawyer concede that Armand’s information “yielded no new arrest” and wasn’t believed by investigators, but a sentencing court ha s discretion to reject a cooperation argument

even when it’s substantiated. See United States v. Leiskunas , 656 F.3d 732, 737 (7th Cir. 2011).

Armand’s sentence is VACATED , and the case is REMANDED for a full resentencing consistent with this decision.