United States of America v. Tyree Neal

In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1338
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TYREE NEAL,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 4:00-cr-40101-JPG-6—J. Phil Gilbert, Judge.
ARGUED SEPTEMBER 28, 2011—DECIDED NOVEMBER 28, 2011
Before BAUER, WOOD and TINDER, Circuit Judges.
BAUER, Circuit Judge. On June 11, 2001, Tyree Neal
was sentenced to 137 months’ imprisonment, fined $1,250,
and placed on supervised release for 3 years for con-
spiracy to possess crack cocaine with the intent to distrib-
ute. His sentence included certain conditions of super-
vised release: “The defendant shall refrain from any
unlawful use of a controlled substance. The defendant
shall submit to one drug test within 15 days of release
from imprisonment and two periodic drug tests there-

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2 No. 11-1338
after, as directed by the probation officer.” Another
related provision stated, “Defendant shall participate
as directed and approved by the probation officer for
treatment of narcotic addition [sic], drug dependence,
or alcohol dependence, which includes urinalysis or
other drug detection measures and which may require
residence and/or participation in a residential treat-
ment facility.”
After serving his sentence, Neal was placed on super-
vised release on December 7, 2010. On January 4, 2011,
the United States Probation Office (“USPO”) filed a peti-
tion with the district court, requesting that the condi-
tions of Neal’s supervision be modified to add a condi-
tion for mental health treatment. The petition did not
mention any modification of Neal’s drug testing condi-
tion. As a basis for the USPO’s modification request, the
USPO cited an incident involving Neal and his daughter,
who filed a police report with the Marion, Illinois Police
Department. According to that police report, Neal
punched his daughter in the eye after an argument
ensued over cleaning up a Cheerios mess on the floor.
A probation officer interviewed Neal regarding the in-
cident. According to Neal, he was acting in self-defense
as a result of his daughter biting his finger while he
was pointing it in her face.
On February 11, 2011, the district court held a hearing
on the petition to modify Neal’s supervised release.
After the hearing, the district court modified the con-
dition of Neal’s supervised release to require him to
participate in a program of mental health treatment.
Neal does not object to this modification.

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No. 11-1338 3
The district court also modified Neal’s drug testing
condition to read: “The defendant shall submit to one
drug test within 15 days of release from imprisonment
and at least two periodic drug tests thereafter, as deter-
mined by the court, not to exceed 52 tests in one year.”
This modification is the subject of Neal’s appeal.
At the modification hearing, the Assistant U.S. Attorney
indicated on the record the reason for modifying Neal’s
drug test condition:
AUSA: And Your Honor, just for the record in
case they appeal, there is evidence in
the presentence report indicating that
the defendant has a drug abuse issue.
THE COURT: Oh, absolutely. Yeah, I would assume
the Court of Appeals would—
AUSA: I’m sure they’ll have the PSR.
THE COURT: —have the PSR, that he’s smoked mari-
juana on a daily basis prior to quitting
six years ago and he tried powder
cocaine—
AUSA: Yes, Your Honor.
THE COURT: —and used substances in ‘99 and again
in July of 2000 before he was arrested.
Then used an eight-ball per week,
indicated that he’d last used cocaine a
week or two prior to his detention in
this case. So I mean, there’s definitely
history of drugs.
On February 11, 2011, Neal filed a notice of appeal.

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4 No. 11-1338
I. DISCUSSION
On appeal, Neal argues that the district court lacked
subject matter jurisdiction to modify the conditions of
his supervised release to include additional drug testing.
Neal argues that the original drug testing condition
was illegal because it gave too much discretion to the
probation officer—rather than the court—to determine
the number of Neal’s drug tests. Neal next contends
that, because the drug testing condition modification
had no support in anything that occurred during Neal’s
supervised release, this Court should infer that the
real basis for the drug modification was to correct the
original illegal condition. Correcting an illegal condition
in a supervised release, Neal argues, is not a factor the
district court was allowed to consider under 18 U.S.C.
§ 3583(e). Thus, according to Neal, the district court
abused its discretion and had no jurisdiction to order
the drug testing condition modification. We disagree.
A district court “may modify, reduce, or enlarge the
conditions of supervised release, at any time prior to
the expiration or termination of the term of supervised
release, pursuant to the provisions of the Federal Rules
of Criminal Procedure relating to the modification of
probation and the provisions applicable to the initial set-
ting of the terms and conditions of post-release super-
vision.” 18 U.S.C. § 3583(e)(2). Section 3583(e) instructs,
therefore, “that just as a district court has wide discretion
when imposing the terms of supervised release . . . so
too must it have wide discretion in modifying the terms
of that supervised release.” United States v. Sines, 303
F.3d 793, 800 (7th Cir. 2002) (citation omitted).

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No. 11-1338 5
We review a district court’s imposition of a special
condition of supervised release for an abuse of discretion.
United States v. Monteiro, 270 F.3d 465, 469 (7th Cir. 2001).
Neal objects to the district court’s modification of his
drug testing condition on the grounds that the district
court did not have jurisdiction under § 3583 to fix an
original illegal condition in a modification hearing. Neal
argues that the record does not disclose the reason for
the modification, and consequently we should infer that,
because the modification to Neal’s drug testing condi-
tion fixed the claimed improper delegation problem,
that must have been the reason for the modification.
That inference is not supported by the record.
In determining whether to modify the terms of a super-
vised release, the district court must consider most of
the same factors it considered in imposing the term
of supervised release. 18 U.S.C. § 3583(e). Specifically, the
district court must ensure that the particular condition:
(1) is reasonably related to specified sentencing
factors, namely the nature and circumstances of
the offense and the history and characteristics of the
defendant;
(2) is reasonably related to the need to afford adequate
deterrence, to protect the public from further crimes
of the defendant, and to provide the defendant with
needed educational or vocational training, medical
care, or other correctional treatment in the most
effective manner;
(3) involves no greater deprivation of liberty than
is reasonably necessary to achieve these goals; and

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6 No. 11-1338
(4) is consistent with any pertinent policy statements
issued by the Sentencing Commission.
Monteiro, 270 F.3d at 468-69 (citing United States v.
Schave, 186 F.3d 839, 841 (7th Cir. 1999); 18 U.S.C.
§§ 3583(d), 3553(a)(1), (a)(2)(B)(D); U.S. Sentencing Guide-
lines Manual § 5D1.3(b)).
In this case, the district court determined that addi-
tional drug testing was reasonably necessary to protect
the public from further criminal activity and deter
Neal from further criminal conduct. The district judge
properly considered Neal’s history and character, noting
that he smoked marijuana on a daily basis in the past,
had used illegal substances in 1999 and 2000 before he
was arrested, and had used cocaine prior to his incar-
ceration. Although the court did not articulate each of
the factors it was considering when it changed the con-
ditions of Neal’s supervised release, the court was
within its discretion to modify his supervision to
include additional drug testing.
Neal argues that the original drug testing condition
was illegal because it gave too much discretion to the
probation officer to determine the scope of Neal’s drug
testing. See United States v. Bonanno, 146 F.3d 502, 511 (7th
Cir. 1998) (“18 U.S.C. § 3583(d) requires that the court
determine the number of drug tests to which the defen-
dants must submit.”). But whether the original drug
testing condition was illegal and whether the modifica-
tion corrected that illegality is not relevant in deter-
mining whether or not the district court properly consid-
ered the factors under § 3583(e).

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No. 11-1338 7
Neal also argues that the only reason for the modifica-
tion was to undo the illegality of the original drug
testing condition because that is all that the modification
does. But that is not accurate; the fact is the modifica-
tion increased the number of his drug tests. Under the
original drug testing condition, Neal was only subject
to 3 drug tests; the modification subjects Neal to drugs
tests “not to exceed 52 times in one year.” The record
clearly establishes that the district court properly con-
sidered the factors under § 3583(e) and neither lacked
jurisdiction nor abused its discretion when it modified
Neal’s supervised release.
II. CONCLUSION
For the reasons stated above, we AFFIRM the district
court’s order modifying Neal’s supervised release.
11-28-11

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