### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 15

‐ 3240

U NITED S TATES OF A MERICA

, Plaintiff

‐ Appellee

,

v.

D EREK O RTIZ

, Defendant

‐ Appellant

.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 10 CR 187

— Matthew F. Kennelly

, Judge

.

____________________

S UBMITTED M ARCH 15, 2016— D ECIDED M ARCH 28, 2016

____________________

Before P OSNER

, K ANNE

, and R OVNER

, Circuit Judges

.

P OSNER

, Circuit Judge

. This appeal is a sequel to one of the

four appeals decided by us in United States v. Thompson

, 777

F.3d 368 (7th Cir. 2015). The appellant, Derek Ortiz, had been

sentenced to prison for 135 months for three bank robberies.

His appeal did not challenge his prison sentence, but only

the conditions of supervised release imposed by the district

judge. We reversed the judge’s supervised

‐ release rulings,

see id

. at 378–80, and remanded for full resentencing. On2 No. 15

‐ 3240

remand the judge reimposed the 135

‐ month prison sentence

(though without explanation he said that Ortiz’s “total sen

‐

tence is 131 months”) but altered the conditions of super

‐

vised release. Ortiz has again appealed, challenging some of

those conditions.

A preliminary objection is to the judge’s failure at the

sentencing hearing to specify the term of supervised release.

He had specified three years at the first sentencing hearing,

and the three

‐ year term is repeated in his written but not his

oral sentence on remand. The oral sentence controls, but giv

‐

en that the judge had specified three years when imposing

sentence in the first round of this litigation the parties doubt

‐

less assumed that the length of supervised release would

again be three years; the judge said that he thought his pre

‐

vious sentence (regarding prison term) had been appropriate

and that he was going to impose it “again.” We’ll also skip

over the mandatory conditions imposed on the defendant,

since the judge was required to impose them.

The judge imposed 18 discretionary conditions. Most of

these are unexceptionable (including one challenged by the

defendant—that he obtain his probation officer’s permission

to borrow money unless he is in compliance with his restitu

‐

tion obligations), but some are questionable. We quote these

from the written judgment, because it is slightly clearer than,

and generally if not entirely consistent with, the judge’s oral

statement of the conditions at the second sentencing hearing.

When there is a conflict between the oral and the written

judgment, the former of course controls. United States v. Per

‐

ry

, 743 F.3d 238, 242 (7th Cir. 2014).

Ortiz doesn’t challenge all the conditions that we ques

‐

tion. But since as we’re about to show the case has to be re

‐No. 15

‐ 3240 3

manded because of errors in some of the conditions that

were challenged, we’ll address errors in the others as well in

order to prevent confusion in the district court on remand.

The first of the questionable conditions requires the de

‐

fendant to “seek, and work conscientiously, at lawful em

‐ ployment” (or pursue a course of study equipping him for

such work, but that part of the condition is proper). The

problem with the quoted portion of the condition is that read

literally it requires him to work even if he can’t find a job. As

an ex

‐ con he may, however conscientiously he seeks produc

‐

tive employment, be unable to persuade any employer to

hire him. This condition needs to be reworded.

Another poorly worded condition requires the defendant

to “remain within the jurisdiction where [he] is being super

‐

vised, unless granted permission to leave by the court or a

probation officer.” There is no definition of “jurisdiction,”

and no reason to think that the defendant would understand

what it meant and, if he correctly understood it to denote a

geographical area, what the boundaries of that area are.

Another questionable condition permits a probation of

‐

ficer to visit the defendant at any reasonable time at home, at

work, or at any other reasonable location specified by a pro

‐

bation officer. It’s not clear that allowing the probation of

‐

ficer to visit the defendant at work is a good idea. A stranger

entering the workplace will usually be asked why he’s there,

and when the employer or the other employees learn that

he’s a probation officer they may doubt the wisdom of con

‐

tinued employment of someone they’ve discovered from the

officer’s visit is a convicted criminal under continued gov

‐

ernment supervision. One needs to distinguish, however,

between the probation officer’s visiting the defendant at4 No. 15

‐ 3240

work, and—what is far less objectionable—visiting the

workplace to verify with management that the defendant is

indeed employed there. A further objection to the visit

‐ in

‐

the

‐ workplace condition is that it was stated differently in

the judge’s oral sentence: omitted was any reference to any

other “reasonable location” that the probation officer might

pick.

Still another questionable condition provides that “if un

‐ employed after the first 60 days of supervision, or

... for 60

days after termination or lay

‐ off from employment,” the de

‐

fendant must “perform at least 20 hours of community ser

‐

vice per week at the direction of the U.S. Probation Service

until gainfully employed,” though “the amount of commu

‐ nity service shall not exceed 200 hours.” The numbers seem

arbitrary. It’s not easy for ex

‐ cons (especially bank robbers!)

to obtain gainful employment; it may often take them more

than 60 days, and having to perform 20 hours or more of

community service—for the condition requires “at least” 20

hours a week of such service—may eat significantly into job

hunting. And one would like to know what “community

service” encompasses. Furthermore, the 20

‐ hour figure is in

conflict with the judge’s oral sentence, which specified 15

rather than 20 hours as the minimum amount of time re

‐ quired to be devoted to community service if the defendant

is not gainfully employed. Requiring volunteer work may be

a good way to keep probationers gainfully occupied so that

they do not get into trouble, and it may also help probation

‐

ers demonstrate their employability and network with po

‐

tential employers. But it is important for the judge to explain

why the number of hours he chose creates a proper balance

between the benefits and the burdens of community service.No. 15

‐ 3240 5

The problems we’ve identified with the conditions of

supervised release imposed by the sentencing judge require

that he reconsider the conditions. We therefore vacate the

sentence and remand for resentencing.