July 7, 2017
from the United States District Court for the Northern
District of Illinois, Western Division. No. 3:15-cr-50010-l -
Frederick J. Kapala, Judge.
Wood, Chief Judge, and Bauer and Flaum, Circuit Judges.
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.
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
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
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.
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.
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."
argues that the district court committed two procedural
errors when imposing the drug-treatment condition. That
condition, he adds, is substantively flawed because of ...