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United States v. Ortiz

United States Court of Appeals, Seventh Circuit

March 28, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DEREK ORTIZ, Defendant-Appellant

         Submitted March 15, 2016

          Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 10 CR 187 -- Matthew F. Kennelly, Judge.

         For United States of America, Plaintiff - Appellee: Bolling W. Haxall, Attorney, Office of The United States Attorney, Chicago, IL.

         For Derek Ortiz, Defendant - Appellant: Daniel J. Hillis, Attorney, Office of The Federal Public Defender, Springfield, IL; Thomas W. Patton, Attorney, Office of The Federal Public Defender, Peoria, IL.

         Before POSNER, KANNE, and ROVNER, Circuit Judges.

          OPINION

Page 554

          Posner, 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. On remand the judge reimposed the 135-month prison sentence (though without explanation he said that Ortiz's " total sentence is 131 months" ) but altered the conditions of supervised 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 given that the judge had specified three years when imposing sentence in the first round of this litigation the parties doubtless assumed that the length of supervised release would again be three years; the judge said that he thought his previous 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

Page 555

he is in compliance with his restitution 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. Perry, 743 F.3d 238, 242 (7th Cir. 2014).

         Ortiz doesn't challenge all the conditions that we question. But since as we're about to show the case has to be remanded 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 defendant to " seek, and work conscientiously, at lawful employment" (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 ...


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