### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 3810
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

E LSTON A. H ENRY , Defendant

- Appell ant

.

____________________ Appeal from t he United States District Court for the Northern District of Illinois, Western Division

. No. 12 CR 50066

- 1

— Philip G. Reinhard
, Judge

.

____________________
A RGUED J ANUARY 26 , 2016

— D ECIDED F EBRUARY 17, 2016

____________________

Before W OOD , Chief Judge
, and B AUER and P OSNER , Ci r cuit Judges

. P OS NER , Circuit Judge

. The defendant pleaded guilty to conspiracy to possess an illegal drug intending to distribute it , see 21 U.S.C. §§ 846, 841, and to possession of a firearm for use in his drug tra f ficking, 18 U.S.C. § 924(c)(1)(A)(i). He was sentenced t o 152 months in prison. His only colorable cha l-2 No. 14

- 3810

lenges on appeal are to the length of the prison term and the duration and conditions of supervised release that the di strict judge imposed

. As part of his drug activity the defendant had r e cruited a man named Arsenio Purif o y to sell heroin for him. He su pplied the heroin to Purifoy with instructions to charge $100 per gram and return $80 to him; the $20 r e tained by Purifoy was compensation for making the sale. (The record is silent on the cost to the defendant of the heroin he bought for Pur ifoy to re sell.) The judge increased t he defendant’s guid e lines range by two levels on the ground that he was Purifoy’s “manager, or s u perviso r , ” of their joint drug activity

. U.S.S.G. § 3B1.1 (c)

. Application Note 4 to guide line 3B1.1 lists “exercise of decision making authority,” “recruitment of acco m plices,” “the claimed right to a larger share of the fruits of the crime,” and “the degree of participation in planning or o rganizing the offense,” as being among the factors th at a judge should consider in deciding whether to impose the
two

- level enhancement. All are present in this case. The d efendant recruited Purifoy to be an accomplice, instructed him (accor d ing to Purifoy) in how to package heroin for sale, claimed

— and inde ed took

— a much larger share (80 percent) of the revenue of Purifoy’s activity than Purifoy himself (20 percent) , and in these respects exercised decision

- making

a u thority over Purifoy
, determined Purifoy’s compensation, and was the planner and organizer of the drug activity (r etail sale of heroin) that he had recruited Purifoy to co n duct

. He also helped pay for a gun for Purifoy to enable the latter to pro tect the conspirators. H e even admitted having “r ecruited Purifoy to sell heroin for” him (that is, for the d e-No. 14

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fe n dant). And finally Purifoy lived in the defendant’s home

— where the defendant could keep an eye on him and kick him out or worse if he didn’t toe the line.
If you recruit a person, tell him what his job is, specify his wage, and equip him with too ls of his trade (the gun in this case), you’re his man ager. Recruitment as a factor suppor ting an inference of management is emphasized in United States v. Mendoza , 576 F.3d 711, 717 (7th Cir. 2009 ), a case sim i lar to this one

. It’s true that there is no e vidence of close, day by day s upervision of Purifoy’s retail sales activity by the defendant. But an employee doesn’t cease to be an e m ployee merely b ecause he’s on a long leash. The judges of this court have been “r e cruited” by the federal government, whi ch is in a broad sense the “organizer” of our activity, but there is no day to day supervision. The fact that Purifoy sold just heroin, though the enterprise sold other illegal drugs as well, is also irrelevant, for different employees often perform diffe r ent tasks for their employer. The two

- level e n hancement was proper. Regarding supervised release
, however, the government concedes that the district judge erred and recommends that the judgment be vacated and the case r e manded for full r esentencing . The re commendation is consistent with the pri nciple that because imprisonment and supervised release are to a degree substitutes

— supervised release like prison i mposes restrictions on the d e fendant’s freedom, albeit less stringent ones

— a change either in the pri son sentence or in the supe r vised

- release se n tence may warrant a change in the other sentence in order to produce an optimal mixture of4 No. 14

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tight and loose restrictions

. E.g., United States v. Downs , 784 F.3d 1180, 1182 (7th Cir. 2015).
The government is right to concede sentencing error in regard to supervised release. The district judge had failed to make the findings required by 18 U.S.C. §§ 3553(a) and 3583(d) to justify the length of a term of supervised r e lease and the particular conditions (other than th ose r e quired by statute) that he imposed . He also failed to state at sentencing the conditions that he was impo s ing . See 18 U.S.C. § 3583(c); United States v. Kappes , 782 F.3d 828, 845, 862 (7th Cir. 2015); United States v. Thom p son , 777 F.3d 368, 373 (7th Cir. 2015).
And a number of the conditions that he imposed have been criticized by this court on a variety of grounds not a ddressed by the district judge . See , e.g., United States v. Poulin
, 809 F.3d 924
, 931

– 34 (7th Cir. 2016) ; United States v. Kappes
, s upra , 782 F.3d at 848

– 51

. For example, he did not explain why he was requiring the d e fendant , as one of the cond itions of supervised release, to “permit a prob a tion officer to visit him or her at any time at home or elsewhere and

... permit confiscation of a ny co n traband observed in plain view of the probation officer.” The imposition of this cond ition without an expl a nation for its need in the particular case has drawn repeated crit i cism from this court

. S ee, e.g., Uni ted States v. Kappes
, s u pra , 782 F.3d at 850

– 51; United States v. Thompson
, supra , 777 F.3d at 379

– 80; United States v. Poulin
, supra , 809 F.3d at 934

. There are two problems with the co ndition. The first is “or els e where.” There is no problem with the probation officer and the de fen d ant agreein g to meet ou tside the defendant’s home, but it is unclear why the prob ation officer should be allowed to pick a location that may be inconvenient for the defe n dant

. Replacing “elsewhere” withNo. 14

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“at some other mutually convenient location designated by the pr obation officer” would solve this pro b lem. Another sol u tion is found in United States v. Armour , 804 F.3d 859, 864, 870 (7th Cir. 2015)

— “You shall permit a probation o ff i cer to visit you at home or any other reasonable loc a tion b etween the hours of 6:00 AM and 11:00 PM, unless investiga ting a violation or in case of eme r gency” (emphasis added). Omitting such a qualif i cation (as the judge did in this case) leaves open at least the theoretical possibility that the prob ation officer could require the defendant to meet him in an inappr o priate location, such as a funeral, or in a remote one, say a place many miles away

. The significance of a requirement of reasonableness is underscored by the remark in Armour that the defendant “argues that the term ‘or other re asonable loc a tion’ is vague and may subject Armour to searches at a church, hospital, or funeral home. However, under most circu m stances, those visits would be unreasonable and thus barred by the condition itself . Therefore, imposing this cond i tion was not an abuse of discretion.” 804 F.3d at 870 (emph a sis added).
There is also a question of what the probation officer would hope to learn from home visits that he would not learn from the defendant’s required visits to the probation office

. A d e fendant who h as contraband in his home is u nlikely to leave it in the “plain view” of the visiting prob a tion off i cer. But in any event the home

- visit condition is not mandatory, and being optional can be modified by the di strict judge to fit the pa r ticulars of the case

. Enough said. The judgment is vacated and the case r emanded for a full resentencing

.