March 15, 2016
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 10 CR 187 --
Matthew F. Kennelly, Judge.
United States of America, Plaintiff - Appellee: Bolling W.
Haxall, Attorney, Office of The United States Attorney,
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.
POSNER, KANNE, and ROVNER, Circuit Judges.
Posner, Circuit Judge.
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.
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.
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 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).
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
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