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United States v. Feterick

United States Court of Appeals, Seventh Circuit

September 29, 2017

United States of America, Plaintiff-Appellee,
v.
Michael Feterick, Defendant-Appellant.

          Argued July 7, 2017

         Appeal from the United States District Court for the Northern District of Illinois, Western Division. No. 3:15-cr-50010-l - Frederick J. Kapala, Judge.

          Before Wood, Chief Judge, and Bauer and Flaum, Circuit Judges.

          PER CURIAM.

         Michael Feterick pleaded guilty to two counts of bank robbery, 18 U.S.C. § 2113(a), and was sentenced to a total of 49 months' imprisonment and 3 years' supervised release. The conditions of supervised release include one requiring that Feterick "participate, at the direction of a probation officer, in a substance abuse treatment program." On appeal Feterick argues that this condition was imposed based on inaccurate information and wasn't adequately explained. He also contends that the condition, as written, gives too much discretion to the probation officer.

         I. BACKGROUND

         In 2015, Feterick robbed two banks within three weeks, each time using a note saying, "Money, no dye packs." Within hours of the second robbery, police found and arrested him in a hotel room he was sharing with his girlfriend. In the room was marijuana and drug paraphernalia belonging to the girlfriend.

         Feterick, who is 47, was charged with both bank robberies. After pleading guilty he told a probation officer about his struggles with mental illness and drug use. In his twenties, Feterick said, he had used cocaine recreationally fewer than two dozen times. But he also had used marijuana well into his thirties and, after quitting for a decade, started up again in late 2014 following the death of his mother. From then on he smoked marijuana daily until February 2015, the month before the first bank robbery. Feterick also told the probation officer that in 2013 he sometimes got "a little buzz" by doubling the dose of Percocet a physician had prescribed after a dog bite. He told the probation officer, though, that he didn't see a need for drug treatment.

         The probation officer proposed overlapping conditions of supervised release requiring that Feterick, first, submit to drug testing up to 104 times annually and, second, "participate, at the direction of a probation officer, in a substance abuse treatment program, which may include urine testing up to a maximum of 104 tests per year." Feterick's lawyer opposed both conditions as unnecessary. The testing condition, counsel said, is not justified by Feterick's prior drug use and will "trap" him into a violation by forcing him to choose between working or showing up for drug tests. In challenging the treatment condition, counsel principally argued that the evidence of ongoing drug use is minimal and the evidence of abuse, nonexistent. The government countered that both proposed conditions are necessary because of Feterick's past drug use and will "promote deterrence" while also protecting the public.

         The district court rejected Feterick's objections. Starting with the testing condition, the court concluded:

He's not a raging heroin addict. That I can see ... . But he's abused prescription drugs in the past. I know that he kept his girlfriend's drugs and paraphernalia in his hotel room. He's used marijuana occasionally from 1997 to 2004, and after his mother's death he's recreationally used cocaine. This kind of history is enough for me to require him to undergo testing.

         The court added that testing will detect unlawful drug use and help Feterick "stay out of prison." And responding to Feterick's challenge to the drug-treatment condition, the district court answered, "As I said, there's enough in his history to think this is warranted."

         II. DISCUSSION

         Feterick argues that the district court committed two procedural errors when imposing the drug-treatment condition. That condition, he adds, is substantively flawed because of ...


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